VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-00309 Package ID: USCOURTS-cofc-1_19-vv-00309 Petitioner: R.O. Filed: 2019-02-27 Decided: 2019-05-23 Vaccine: MMRV Vaccination date: 2016-08-15 Condition: immune thrombocytopenia purpura (ITP) Outcome: compensated Award amount USD: 176500 AI-assisted case summary: On February 27, 2019, Kathryn Oaks and Luke Oaks filed a petition on behalf of their minor child, R.O., seeking compensation under the National Vaccine Injury Compensation Program. They alleged that R.O. developed immune thrombocytopenia purpura (ITP) after receiving a measles-mumps-rubella-varicella (MMRV) vaccine on August 15, 2016, and that the injury lasted more than six months. The case was assigned to the Special Processing Unit. On May 23, 2019, the respondent filed a Rule 4(c) report conceding entitlement, stating that the petitioners met the criteria set forth in the Vaccine Injury Table and the Qualifications and Aids to Interpretation. Chief Special Master Nora Beth Dorsey accepted the respondent's position and the evidence of record, finding petitioners entitled to compensation. Damages were resolved through a proffer by the respondent, which the petitioners accepted. On August 10, 2020, Chief Special Master Brian H. Corcoran awarded a total of $176,500.00 in compensation. This included $150,000.00 for pain and suffering, $11,500.00 for past out-of-pocket expenses, and $15,000.00 for future out-of-pocket expenses related to R.O.'s future medical care. The pain and suffering payment was to be made for R.O.'s benefit after petitioners provided documentation establishing a guardian or conservator. Petitioners were represented by Brenton Aaron Elswick in the entitlement phase and Diana Lynn Stadelnikas in the damages phase, both attorneys with Maglio Christopher & Toale. Theory of causation field: Petitioners Kathryn Oaks and Luke Oaks filed on behalf of minor R.O., alleging immune thrombocytopenia purpura (ITP) following an MMRV vaccine administered on August 15, 2016. Respondent conceded entitlement, finding the case met criteria in the Vaccine Injury Table. Chief Special Master Nora Beth Dorsey ruled on entitlement on May 23, 2019, based on respondent's concession and the record. Damages were determined via a proffer by respondent, accepted by petitioners. Chief Special Master Brian H. Corcoran issued a decision on August 10, 2020, awarding $176,500.00 total compensation: $150,000.00 for pain and suffering (payable to R.O. upon establishment of guardianship/conservatorship), $11,500.00 for past out-of-pocket expenses, and $15,000.00 for future out-of-pocket expenses. Petitioners were represented by Brenton Aaron Elswick and Diana Lynn Stadelnikas of Maglio Christopher & Toale. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_19-vv-00309-0 Date issued/filed: 2019-08-14 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 05/23/2019) regarding 18 Ruling on Entitlement ( Signed by Chief Special Master Nora Beth Dorsey. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-00309-UNJ Document 25 Filed 08/14/19 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-0309V Filed: May 23, 2019 UNPUBLISHED KATHRYN OAKS and LUKE OAKS, on behalf of R.O., a minor child, Special Processing Unit (SPU); Petitioners, Ruling on Entitlement; Concession; v. Table Injury; Measles Mumps Rubella (MMR) Vaccine; SECRETARY OF HEALTH Thrombocytopenic Purpura (ITP) AND HUMAN SERVICES, Respondent. Brenton Aaron Elswick, Maglio Christopher & Toale, PA, Seattle, WA, for petitioner. Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 Dorsey, Chief Special Master: On February 27, 2019, Kathryn Oaks and Luke Oaks (“petitioners”) filed a petition on behalf of R.O., a minor child, for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioners allege that R.O. suffers from immune thrombocytopenia purpura (“ITP”) as a result of a measles, mumps, rubella, and varicella vaccine (“MMRV vaccine”) administered to R.O. on August 15, 2016. See generally petition. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This means the ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Case 1:19-vv-00309-UNJ Document 25 Filed 08/14/19 Page 2 of 2 On May 23, 2019, respondent filed his Rule 4(c) report in which he concedes that petitioners are entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, respondent states that petitioners have satisfied the criteria set forth in the Table and the Qualifications and Aids to Interpretation Id. at 8. In view of respondent’s position and the evidence of record, the undersigned finds that petitioners are entitled to compensation. IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_19-vv-00309-1 Date issued/filed: 2020-09-14 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 08/10/2020) regarding 49 DECISION Stipulation/Proffer Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-00309-UNJ Document 52 Filed 09/14/20 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-0309V UNPUBLISHED KATHRYN OAKS and LUKE OAKS, on Chief Special Master Corcoran behalf of R.O., a minor child, Filed: August 10, 2020 Petitioners, v. Special Processing Unit (SPU); Damages Decision Based on Proffer; SECRETARY OF HEALTH AND Measles Mumps Rubella (MMR) HUMAN SERVICES, Vaccine; Thrombocytopenic Purpura (ITP) Respondent. Diana Lynn Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioners. Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On February 27, 2019, Kathryn Oaks and Luke Oaks filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 Petitioners allege that R.O. suffers from immune thrombocytopenia purpura as a result of a measles, mumps, rubella, and varicella vaccine administered to R.O. on August 15, 2016. See generally Petition. Petitioners further allege that R.O.’s injuries have lasted more than six months. Petition at 4. The case was assigned to the Special Processing Unit of the Office of Special Masters. On May 23, 2019, a ruling on entitlement was issued, finding Petitioners entitled to compensation. On August 10, 2020, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioners should be awarded a total of $176,500.00 representing $150,000.00 of compensation for pain and suffering, and $11,500.00 for 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact 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 redact such material from public access. 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 (2012). Case 1:19-vv-00309-UNJ Document 52 Filed 09/14/20 Page 2 of 5 past out-of-pocket expenses, and $15,000.00 for future out-of-pocket expenses related to R.O.’s future medical care. Proffer at 2. In the Proffer, Respondent represented that Petitioners agree with the proffered award. Id. Based on the record as a whole, I find that Petitioners are entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioners the following: A. A lump sum payment of $150,000.00, representing compensation for pain and suffering, in the form of a check payable to Petitioner(s) as guardian/conservator of R.O., for the benefit of R.O. No payment shall be made until Petitioners provides Respondent with documentation establishing that he or she has been appointed guardian/conservator of R.O. B. A lump sum payment of $26,500.00 representing compensation for past and future out-of-pocket expenses in the form of a check payable to Petitioners. These amounts represent compensation for all damages that would be available under § 15(a). The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:19-vv-00309-UNJ Document 52 Filed 09/14/20 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ____________________________________ ) KATHRYN OAKS and LUKE OAKS, ) No. 19-309V on behalf of R.O., a minor child, ) ) Chief Special Master Brian H. Corcoran Petitioners, ) ECF ) v. ) ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On May 23, 2019, respondent filed a Rule 4(c) Report conceding that petitioners are entitled to vaccine compensation on behalf of minor R.O., for R.O.’s immune thrombocytopenia purpura (“ITP”) suffered following receipt of a measles, mumps, rubella, and varicella (“MMRV”) vaccine on August 15, 2016. On May 23, 2019, the Court issued a Ruling on Entitlement, adopting respondent’s recommendation. Respondent now proffers the following regarding the amount of compensation to be awarded, which encompass all elements of damages petitioner would be entitled to under 42 U.S.C. § 300aa-15(a).1 I. Compensation for Vaccine Injury-Related Items A. Pain and Suffering Respondent proffers that R.O. should be awarded $150,000.00 in actual and projected pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioners agree. 1 Should R.O. die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. 1 Case 1:19-vv-00309-UNJ Document 52 Filed 09/14/20 Page 4 of 5 B. Out of Pocket Expenses Respondent proffers that petitioners should be awarded $11,500.00 for past out of pocket expenses, and $15,000.00 for future out of pocket expenses related to R.O.’s future medical care. See 42 U.S.C. § 300aa-15(a)(1). Petitioners agree. II. Form of the Award The parties recommend that the compensation provided to R.O. and petitioners should be made through lump sum payment 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 $150,000.00 representing compensation for pain and suffering, in the form of a check payable to petitioner(s) as guardian/conservator of R.O., for the benefit of R.O. No payment shall be made until petitioner provides respondent with documentation establishing that he or she has been appointed guardian/conservator of R.O. B. A lump sum payment of $26,500.00 representing compensation for past and future out of pocket expenses in the form of a check payable to petitioners. III. Guardianship No payments shall be made until petitioners provide respondent with documentation establishing that he/she has been appointed as the guardian/conservator of R.O. If petitioner is not authorized by a court of competent jurisdiction to serve as guardian/conservator of R.O., any such payment shall be made to the party or parties appointed by a court of competent jurisdiction to serve as guardian/ conservator of R.O. upon submission of written documentation of such appointment to the Secretary. 2 Case 1:19-vv-00309-UNJ Document 52 Filed 09/14/20 Page 5 of 5 Respectfully submitted, ETHAN P. DAVIS Acting Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division /s/ Kyle E. Pozza__________ KYLE E. POZZA Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Phone: (202) 616-3661 Kyle.Pozza@usdoj.gov Dated: August 10, 2020 3