N.K.N. v. HHS - Rotavirus, intussusception (2017)

Daniel and Allyson Neiman, as parents and legal representatives of their minor son N.K.N., filed a petition for compensation under the National Vaccine Injury Compensation Program on June 19, 2015. They alleged that N.K.N. developed severe intussusception requiring surgical intervention following the administration of several vaccinations, including the rotavirus vaccine.

The case was assigned to the Special Processing Unit. On June 8, 2016, the respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report conceding that N.K.N.'s intussusception was more likely than not caused in fact by the administration of the rotavirus vaccine, and that entitlement to compensation was appropriate under the Vaccine Act.

The respondent noted that intussusception was added to the Vaccine Injury Table for the rotavirus vaccine on July 23, 2015, after the petition was filed, meaning the claim could not be asserted as a Table injury. Chief Special Master Nora Beth Dorsey issued a Ruling on Entitlement on June 9, 2016, finding that petitioners were entitled to compensation based on the respondent's concession.

Subsequently, on August 22, 2016, the Special Master issued a ruling on pain and suffering, awarding $144,000.00 for past pain and suffering and $1,000.00 per year over a 74-year life expectancy for future pain and suffering, along with $5,992.21 in past unreimbursable medical expenses. The parties were ordered to convert the future pain and suffering award to a net present value.

They were unable to agree on the net present value, with the respondent proposing a 2% net discount rate resulting in $39,219.67, and the petitioners proposing a 1% rate for the first 15 years followed by a 2% rate for the remaining 59 years, resulting in $40,235.10. The Special Master found the petitioners' approach appropriate due to current historically low interest rates and concluded that the net present value of the future pain and suffering award was $40,235.10.

A final Decision Awarding Damages was issued on January 13, 2017. The total award was a lump sum of $190,277.31, representing $144,000.00 for past pain and suffering, $40,235.10 for future pain and suffering (net present value), and $5,992.21 for past unreimbursable medical expenses.

This amount was payable to the petitioners as guardians/conservators of N.K.N.'s estate. The public decision does not describe the specific onset of symptoms, diagnostic tests, treatments other than surgery, or the mechanism of injury.

Petitioner counsel was Elizabeth Martin Muldowney of Rawls, McNelis and Mitchell, P.C., and respondent counsel was Camille Michelle Collett of the U.S. Department of Justice.

Chief Special Master Nora Beth Dorsey presided over the rulings.