VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_12-vv-00733
Package ID: USCOURTS-cofc-1_12-vv-00733
Petitioner: A.S.
Filed: 2012-10-26
Decided: 2014-03-28
Vaccine: MMR
Vaccination date: 2010-01-15
Condition: acute encephalopathy and/or encephalitis and the onset of chronic encephalopathy/seizure disorder
Outcome: compensated
Award amount USD: 1007837.92

AI-assisted case summary:
On October 26, 2012, Philip and Pamela Sapienza filed a petition seeking compensation on behalf of their daughter, A.S., who received the measles, mumps, and rubella (MMR) vaccine on January 15, 2010. The petition alleged that A.S. suffered acute encephalopathy and/or encephalitis and the onset of chronic encephalopathy and seizure disorder following the MMR vaccine. Alternatively, the petition alleged that a combination of the MMR, diphtheria-tetanus-acellular pertussis (DTaP), varicella, and polio vaccines administered on the same day caused her ongoing condition. The respondent conceded entitlement to compensation in a Rule 4(c) report filed January 24, 2013. The report stated that A.S. suffered encephalopathy within five to fifteen days after receiving the MMR vaccine, satisfying the Vaccine Injury Table definition, and that the record did not show by a preponderance of the evidence that her encephalopathy was due to factors unrelated to the MMR vaccine. Chief Special Master Denise K. Vowell issued a ruling on entitlement on January 29, 2013, and the case proceeded to the damages phase. The public damages decision did not detail a specific treatment chronology or expert dispute, as entitlement had been conceded. On March 27, 2014, the respondent filed a proffer on the award of compensation. Petitioners agreed to each aspect of the proposed award. The life-care component was developed with input from respondent's life care planner, Laura Fox, MSN, RN, CNLCP, and petitioners' expert, William H. Burke, Ph.D. The parties also agreed that A.S. would not be gainfully employed in the future and that there were no outstanding Medicaid liens. On March 28, 2014, Chief Special Master Vowell awarded damages. The award included a lump sum payment of $993,374.96 payable to petitioners as guardians or conservators of A.S.'s estate for A.S.'s benefit. This amount comprised $721,296.94 for lost future earnings, $227,961.32 for actual and projected pain and suffering, and $44,116.70 for first-year life care expenses. An additional lump sum payment of $14,462.96 was made payable to Philip and Pamela Sapienza for past unreimbursable expenses. The award also included an amount sufficient to purchase an annuity for future life-care items. The annuity payments were life-contingent, payable only while A.S. was alive, and were to grow at four percent compounded annually for non-medical items and five percent compounded annually for medical items. Petitioners were represented by Joseph F. McDowell, III of McDowell & Osburn, P.A. The total award for damages was $1,007,837.92. Subsequently, on September 5, 2014, the parties filed a stipulation for attorney fees and costs. Chief Special Master Vowell issued a decision on attorney fees and costs on September 16, 2014, awarding a total of $102,793.98 as a lump sum, jointly payable to petitioners Philip Sapienza and Pamela Sapienza, and their attorney, Joseph F. McDowell. This award covered all legal expenses incurred in the matter.

Theory of causation field:
Petitioners alleged that A.S. suffered acute encephalopathy and/or encephalitis and the onset of chronic encephalopathy/seizure disorder after receiving the MMR vaccine on January 15, 2010, or alternatively, due to a combination of MMR, DTaP, varicella, and polio vaccines administered the same day. Respondent conceded entitlement in a Rule 4(c) report, stating medical records showed encephalopathy within 5-15 days after the MMR vaccine, satisfying the Vaccine Injury Table, and no preponderant unrelated factor was identified. Chief Special Master Denise K. Vowell ruled on entitlement on January 29, 2013. The damages decision on March 28, 2014, was based on a proffer agreed to by both parties, with no litigated expert dispute regarding the mechanism of injury presented in the public decision. Life care planning input was provided by Laura Fox (respondent) and William H. Burke (petitioners). The award totaled $1,007,837.92, including $993,374.96 for A.S. (lost future earnings, pain and suffering, first-year life care) and $14,462.96 for past unreimbursable expenses, plus a life-contingent annuity for future life care with 4% annual growth for non-medical items and 5% for medical items. Attorney Joseph F. McDowell III represented petitioners. Attorney fees and costs of $102,793.98 were awarded on September 16, 2014.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_12-vv-00733-0
Date issued/filed: 2014-04-07
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 3/28/2014) regarding 20 DECISION Stipulation/Proffer Signed by Chief Special Master Denise Kathryn Vowell. (tpj) Copy to parties.
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Case 1:12-vv-00733-UNJ Document 24 Filed 04/07/14 Page 1 of 7
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 12-733V
Filed: March 28, 2014
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
PHILIP SAPIENZA and PAMELA *
SAPIENZA, parents and next friends of *
A.S., *
Petitioners, * Damages Decision Based on Proffer;
v. * MMR; Table encephalopathy.
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Joseph F. McDowell, III, Esq., McDowell & Osburn, PA, Manchester, NH for petitioners.
Heather Pearlman, Esq., U.S. Department of Justice, Washington, DC for respondent.
DECISION AWARDING DAMAGES1
Vowell, Chief Special Master:
On October 26, 2012, Philip and Pamela Sapienza filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §
300aa-10, et seq.2 [the “Vaccine Act” or “Program”] on behalf of their daughter, A.S.
The petition alleges that A.S. suffered an “acute encephalopathy and/or
encephalitis and the onset of chronic encephalopathy/seizure disorder” after receiving
the measles, mumps, and rubella [“MMR”] vaccine on January 15, 2010. Petition at 1.
Alternatively, petitioners allege that the combination of the MMR, diphtheria, tetanus,
and pertussis [“DTaP”], varicella, and polio vaccines A.S. received on January 15, 2010,
was the cause-in-fact of her “ongoing” condition. Id.
On January 29, 2013, shortly after respondent conceded that petitioners were
entitled to compensation,3 I issued a ruling on entitlement and this case entered the
1 When this decision was originally issued, petitioners were informed that the decision would be posted in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913
(codified as amended at 44 U.S.C. § 3501 note (2006)). Petitioners were also notified that they could
seek redaction pursuant to 42 U.S.C. § 300aa-12(d)(4)(B); Vaccine Rule 18(b). Petitioners’ timely
request for redaction was granted. Thus, this decision is being posted with the name of the minor child
redacted to initials.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2006).

Case 1:12-vv-00733-UNJ Document 24 Filed 04/07/14 Page 2 of 7
damages phase. On March 27, 2014, respondent filed a proffer on award of
compensation detailing compensation for life care items, lost future earnings, pain and
suffering, and past unreimbursable expenses.4
The proffer indicates that petitioners agree with each aspect of the compensation
award. Pursuant to the terms stated in the attached Proffer, I award petitioners:
1. A lump sum payment of $993,374.96 in the form of a check payable to
petitioners, as guardian(s)/conservator(s) of A.S., for the benefit of A.S.,
representing compensation for lost future earnings ($721,296.94), pain and
suffering ($227,961.32), and life care expenses expected to be incurred
during the first year after judgment ($44,116.70). This payment shall not be
made until petitioners provide respondent with documentation establishing
that they have been appointed as the guardian(s)/conservator(s) of A.S.;
2. A lump sum payment of $14,462.96 in the form of a check payable to
petitioners, Philip and Pamela Sapienza, representing compensation for
past unreimbursable expenses; and
3. An amount sufficient to purchase an annuity contract, subject to the
conditions described in the Proffer, paid to the life insurance company from
which the annuity will be purchased, that will provide payments for the life
care items contained in the life care plan.
These amounts represent compensation for all damages that would be available
under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.5
IT IS SO ORDERED.
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
3 On January 24, 2013, respondent filed her Rule 4(c) report, which stated that petitioners “are entitled to
a vaccine award because the medical records demonstrate that [A.S.] suffered from an encephalopathy
within five (5) to fifteen (15) days of receiving an MMR vaccine as defined in the Vaccine Injury Table, 42
C.F.R. §§ 100.3(a)(III)(B) and 100.3(b)(2). Further, there is not a preponderance of evidence that [A.S.’s]
encephalopathy was due to factors unrelated to the MMR vaccine.”
4 The proffer notes that there are no outstanding Medicaid liens against petitioners.
5 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
2

Case 1:12-vv-00733-UNJ Document 24 Filed 04/07/14 Page 3 of 7
UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________________
Philip Sapienza and Pamela Sapienza, )
Parents and Next Friends of A.S., )
)
Petitioners, )
v. ) No. 12-733V
) Chief Special Master Vowell
SECRETARY OF THE DEPARTMENT OF ) ECF
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
________________________________________ )
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
The respondent engaged life care planner, Laura Fox, MSN, RN, CNLCP, and
petitioners engaged William H. Burke, Ph.D., to provide an estimation of A.S.’s future
vaccine-injury related needs. For the purposes of this proofer, the term “vaccine-related” is as
described in respondent’s Rule 4(c) report filed January 24, 2013. All items of compensation
identified in the life care plan are supported by the evidence, and are illustrated by the chart
entitled Appendix A: Items of Compensation for A.S., attached hereto as Tab A.1
Respondent proffers that A.S. should be awarded all items of compensation set forth in the life
care plan and illustrated by the chart attached at Tab A. Petitioners agree.
B. Lost Future Earnings
The parties agree that based upon the evidence of record, A.S. will not be gainfully
1 The chart at Tab A illustrates the annual benefits provided by the life care plan. The annual benefit years run from
the date of judgment up to the first anniversary of the date of judgment, and every year thereafter up to the
anniversary of the date of judgment.

Case 1:12-vv-00733-UNJ Document 24 Filed 04/07/14 Page 4 of 7
employed in the future. Therefore, respondent proffers that A.S. should be awarded lost future
earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B). Respondent
proffers that the appropriate award for A.S.’s lost future earnings is $721,296.94. Petitioners
agree.
C. Pain and Suffering
Respondent proffers that A.S. should be awarded $227,961.32 in actual and projected
pain and suffering. This amount reflects that the award for projected pain and suffering has
been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioners agree.
D. Past Unreimbursable Expenses
Evidence supplied by petitioners documents their expenditure of past unreimbursable
expenses related to A.S.’s vaccine related injury. Respondent proffers that petitioners should be
awarded past unreimbursable expenses in the amount of $14,462.96. Petitioners agree.
E. Medicaid Lien
Petitioners represent that there are no outstanding Medicaid liens against A.S.
II. Form of the Award
The parties recommend that the compensation provided to A.S. should be made through
a combination of lump sum payments and future annuity payments as described below, and
request that the Chief Special Master’s decision and the Court’s judgment award the following:
A. A lump sum payment of $993,374.96, representing compensation for lost future
earnings ($721,296.94), pain and suffering ($227,961.32), and life care expenses for Year One
($44,116.70), in the form of a check payable to petitioners as guardian(s)/conservator(s) of
A.S., for the benefit of A.S. No payments shall be made until petitioners provide respondent
with documentation establishing that they have been appointed as the guardian(s)/
2

Case 1:12-vv-00733-UNJ Document 24 Filed 04/07/14 Page 5 of 7
conservator(s) of A.S.’s estate;
B. A lump sum payment of $14,462.96, representing compensation for past
unreimbursable expenses, payable to Philip Sapienza and Pamela Sapienza, petitioners;
C. An amount sufficient to purchase the annuity contract,2 subject to the
conditions described below, that will provide payments for the life care items contained in the
life care plan, as illustrated by the chart at Tab A, attached hereto, paid to the life insurance
company3 from which the annuity will be purchased.4 Compensation for Year Two (beginning
on the first anniversary of the date of judgment) and all subsequent years shall be provided
through respondent’s purchase of an annuity, which annuity shall make payments directly to
petitioners as guardian(s)/conservator(s) of the estate of A.S., for the benefit of A.S., only so
long as A.S. is alive at the time a particular payment is due. At the Secretary’s sole discretion,
the periodic payments may be provided to petitioners in monthly, quarterly, annual or other
installments. The “annual amounts” set forth in the chart at Tab A describe only the total yearly
sum to be paid to petitioners and do not require that the payment be made in one annual
installment.
2 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life
insurance companies.
3 The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any
mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from
two of the following rating organizations:
a. A.M. Best Company: A++, A+ A+g, A+p, A+r, or A+s;
b. Moody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;
c. Standard and Poor’s Corporation Insurer Claims‐Paying Ability Rating: AA‐, AA, AA+, or AAA;
d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA‐, AA, AA+, or AAA.
3

Case 1:12-vv-00733-UNJ Document 24 Filed 04/07/14 Page 6 of 7
1. Growth Rate
Respondent proffers that a four percent (4%) growth rate should be applied to all
non-medical life care items, and a five percent (5%) growth rate should be applied to all
medical life care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid
through annuity payments should grow as follows: four percent (4%) compounded annually
from the date of judgment for non-medical items, and five percent (5%) compounded annually
from the date of judgment for medical items. Petitioners agree.
2. Life-contingent annuity
Petitioners will continue to receive the annuity payments from the Life Insurance
Company only so long as A.S. is alive at the time that a particular payment is due. Written
notice shall be provided to the Secretary of Health and Human Services and the Life Insurance
Company within twenty (20) days of A.S.’s death.
3. Guardianship
No payments shall be made until petitioners provided respondent with documentation
establishing that they have been appointed as the guardian(s)/conservator(s) of A.S.’s estate. If
petitioners are not authorized by a court of competent jurisdiction to serve as
guardian(s)/conservator(s) of the estate of A.S., any such payment shall be made to the party or
parties appointed by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of
the estate of A.S. upon submission of written documentation of such appointment to the
Secretary.
4 Petitioner authorizes the disclosure of certain documents filed by the petitioner in his case consistent with the
Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of
Records, No. 09‐15‐0056.
4

Case 1:12-vv-00733-UNJ Document 24 Filed 04/07/14 Page 7 of 7
III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioners as guardian(s)/conservator(s)
of A.S.’s estate: $ 993,374.96
B. Lump sum paid to petitioners: $ 14,462.96
C. An amount sufficient to purchase the annuity contract
described above in section II.C.
Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
LYNN E. RICCIARDELLA
Senior Trial Attorney
Torts Branch, Civil Division
/S/ HEATHER L. PEARLMAN
HEATHER L. PEARLMAN
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Telephone: (202) 353-2699
Dated: March 27, 2014
5

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DOCUMENT 2: USCOURTS-cofc-1_12-vv-00733-1
Date issued/filed: 2014-10-14
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 09/16/2014) regarding 31 DECISION Fees Stipulation/Proffer Signed by Chief Special Master Denise Kathryn Vowell. (dlb) Copy to parties.
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Case 1:12-vv-00733-UNJ Document 32 Filed 10/14/14 Page 1 of 2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 12-733V
Filed: September 16, 2014
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
PHILIP SAPIENZA and *
PAMELA SAPIENZA, *
Parents and next friends of A.S., *
*
Petitioners, *
* Attorney Fees and Costs; Stipulation
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Joseph F. McDowell, III, Esq., McDowell & Osburn, PA, Manchester, NH, for petitioners.
Heather Pearlman, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEY FEES AND COSTS1
Vowell, Chief Special Master:
In this case under the National Vaccine Injury Compensation Program,2 I issued
a decision awarding damages on March 28, 2014. Judgment entered on April 18, 2014.
On September 5, 2014, the parties filed a stipulation for attorney fees and costs. The
stipulation indicates that respondent does not object to the amount petitioners are
requesting. Additionally, pursuant to General Order #9, the stipulation notes that
petitioners incurred no personal litigation costs.
I find that this petition was brought in good faith and that there existed a
reasonable basis for the claim. Therefore, an award for fees and costs is appropriate,
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post this decision on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioners have 14 days to identify
and move to delete medical or other information, the disclosure of which would constitute an unwarranted
invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will
delete such material from public access.
2 The applicable statutory provisions defining the program are found at 42 U.S.C. § 300aa-10 et seq.
(2006).

Case 1:12-vv-00733-UNJ Document 32 Filed 10/14/14 Page 2 of 2
pursuant to 42 U.S.C. §§ 300aa-15(b) and (e)(1). Further, the proposed amount seems
reasonable and appropriate. Accordingly, I award the total $102,793.983 as a lump
sum in the form of a check jointly payable to petitioners Philip Sapienza and
Pamela Sapienza, and their attorney, Joseph F. McDowell.
The clerk of the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/ Denise K. Vowell
Denise K. Vowell
Chief Special Master
3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including
costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924
F.2d 1029 (Fed. Cir.1991).
4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
See Vaccine Rule 11(a).
2