VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01358
Package ID: USCOURTS-cofc-1_20-vv-01358
Petitioner: O.C.
Filed: 2020-06-24
Decided: 2023-02-28
Vaccine: MMR
Vaccination date: 2019-03-07
Condition: idiopathic thrombocytopenic purpura (ITP)
Outcome: compensated
Award amount USD: 46832

AI-assisted case summary:
Katherine and Jared Cummings, parents of O.C., a minor, filed a petition for compensation under the National Vaccine Injury Compensation Program on October 9, 2020. They alleged that O.C. suffered idiopathic thrombocytopenic purpura (ITP) caused by the measles mumps rubella (MMR) vaccine received on March 7, 2019. The respondent, the Secretary of Health and Human Services, initially disputed causation for several vaccines but later conceded entitlement to compensation for ITP related to the MMR vaccine. This concession followed a ruling on entitlement issued by Chief Special Master Brian H. Corcoran on June 24, 2022, which found that O.C. suffered an episode of ITP related to the MMR vaccination. The case then proceeded to a damages decision based on a proffer filed by the respondent on January 10, 2023, with the agreement of the petitioners. Chief Special Master Corcoran issued a decision on February 28, 2023, awarding compensation. The award included an amount not to exceed $35,000.00 to purchase an annuity contract for pain and suffering, with specific lump sum payments scheduled for April 26, 2038, April 26, 2041, and April 26, 2044. Additionally, a lump sum payment of $11,832.23 was awarded to satisfy a State of Ohio Medicaid lien. The total award was $46,832.23. Petitioners were represented by Emily Beth Ashe of Anapol Weiss, and respondent was represented by Kyle Edward Pozza of the U.S. Department of Justice.

Theory of causation field:
Petitioners Katherine and Jared Cummings, on behalf of minor O.C., alleged that O.C. suffered idiopathic thrombocytopenic purpura (ITP) caused by the measles mumps rubella (MMR) vaccine received on March 7, 2019. The respondent conceded entitlement to compensation for ITP related to the MMR vaccine following a ruling on entitlement. The case proceeded to a damages decision based on a proffer. The award included $35,000.00 for pain and suffering, to be used to purchase an annuity contract with specific future lump sum payments, and $11,832.23 to satisfy a State of Ohio Medicaid lien. The total award was $46,832.23. Chief Special Master Brian H. Corcoran issued the ruling on entitlement on June 24, 2022, and the damages decision on February 28, 2023. Petitioners were represented by Emily Beth Ashe, and respondent by Kyle Edward Pozza.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01358-0
Date issued/filed: 2022-03-30
Pages: 9
Docket text: PUBLIC ORDER/RULING (Originally filed: 02/24/2022) regarding 30 Findings of Fact & Conclusions of Law,,, Scheduling Order,, Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-01358-UNJ Document 32 Filed 03/30/22 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1358V
UNPUBLISHED
KATHERINE CUMMINGS and JARED Chief Special Master Corcoran
CUMMINGS, Parents of O.C., a Minor,
Filed: February 24, 2022
Petitioners,
v. Special Processing Unit (SPU);
Findings of Fact; Statutory Six Month
SECRETARY OF HEALTH AND Requirement Measles Mumps
HUMAN SERVICES, Rubella (MMR) Vaccine; Varicella
Vaccine; Diphtheria Tetanus acellular
Respondent. Pertussis (DTaP) Vaccine;
Haemophilus influenzae type b (Hib)
Vaccine; Hepatitis A (Hep A)
Vaccine; Pneumococcal Conjugate
Vaccine; Thrombocytopenic Purpura
(ITP)
Emily Beth Ashe, Anapol Weiss, Philadelphia, PA, for Petitioners.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On October 9, 2020, Katherine and Jared Cummings, parents of O.C., a minor,
filed a petition for compensation under the National Vaccine Injury Compensation
Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioners allege that O.C.
1 Because this unpublished Fact Ruling 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 Fact Ruling will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), petitioners have 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 1:20-vv-01358-UNJ Document 32 Filed 03/30/22 Page 2 of 9
received the varicella, DTaP, hemophilus influenza B, hepatitis A, MMR, and pediatric
pneumococcal vaccines on March 7, 2019 and thereafter was diagnosed with idiopathic
thrombocytopenic purpura (“ITP”), which was caused by these vaccines. Petition at 1.
The case was assigned to the Special Processing Unit of the Office of Special Masters.
For the reasons discussed below, I find that it is more likely than not that O.C.
suffered the residual effects of ITP for more than six months – although the issue is
extremely close.
I. Relevant Procedural History
Petitioners filed Exhibits 1-4 containing medical records on November 9, 2020
(ECF No. 7). On November 20, 2020, Petitioners filed Exhibit 5, an affidavit (ECF No. 9).
On June 24 and August 11, 2021, Petitioners filed Exhibits 6 and 7 containing medical
records (ECF Nos. 18 and 23).
On January 28, 2022, Respondent filed his Rule 4(c) Report and Motion to Dismiss
(ECF No. 28). In the report, he asserted that the statutory severity requirement had not
been met and the case should be dismissed. On February 11, 2022, Petitioners filed a
response.
On February 17, 2022, a telephonic status conference was held to discuss the
parties’ submissions and how the parties wished to proceed. Emily Ashe appeared on
behalf of Petitioners, and Kyle Pozza appeared on behalf of Respondent. During the
conference, counsel for both parties stated that they did not wish to file additional
evidence or briefing, and agreed that the issue of whether O.C. suffered the residual
effects of ITP for more than six months was ripe for resolution.
II. Issue
At issue is whether O.C. continued to suffer the residual effects of ITP for more
than six months. Section 11(c)(1)(D)(i) (statutory six-month requirement).
III. Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation,
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy
2

Case 1:20-vv-01358-UNJ Document 32 Filed 03/30/22 Page 3 of 9
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” Murphy v. Sec’y of
Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,
1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd
per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as
incorrect the presumption that medical records are accurate and complete as to all the
patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has outlined four possible explanations
for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y
of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).
The credibility of the individual offering such fact testimony must also be determined.
Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley
v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
3

Case 1:20-vv-01358-UNJ Document 32 Filed 03/30/22 Page 4 of 9
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within
the special master’s discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
IV. Finding of Fact
I make these findings after a complete review of the record, including all medical
records, affidavits, Respondent’s Rule 4 Report, Petitioners’ response, and additional
evidence filed:
• Exhibit 1 at 85-87, recording that on March 7, 2019, O.C. received MMR,
Pneumococcal, Hepatitis A, DTaP, HIB, and Varicella vaccines.
• Exhibit 2 at 74-80, a record of O.C.’s March 31-April 2, 2019 hospitalization,
during which she was diagnosed with ITP that was noted to have occurred
three weeks after vaccination. Four days prior to her hospitalization, i.e.,
March 27, 2019, O.C. had two injuries where she hit her left temple and
forehead. Ex. 2 at 76. O.C. presented with “[e]xtensive bruising, including
forehead hematoma” and several smaller contusions on her back and
extremities, in addition to gingival bleeding.3 Id. at 74, 77. Testing revealed
a platelet count of less than 1,000/mm. Ex. 1 at 95. O.C. was subsequently
assessed with severe ITP. Ex. 2 at 52, 57.
• Exhibit 2 at 4, 77, documenting that during her hospitalization for ITP, O.C.
was given intravenous methylprednisone on March 31 and April 1, 2019,
and oral prednisone thereafter. On the third day of O.C.’s hospitalization,
her platelet count had increased from undetectable to 84,000/mm. Id. at 77.
By the time of discharge on April 2, 2019, the bruising along O.C.’s forehead
had decreased in size and swelling. Id. She was discharged with a four-day
course of steroids. Id.
3 The hospital record contains pictures of O.C. at the time of hospitalization. See Ex. 2 at 43, 45, 47, 308.
4

Case 1:20-vv-01358-UNJ Document 32 Filed 03/30/22 Page 5 of 9
• Exhibit 2 at 58, a March 31, 2019 treatment plan stating that O.C. should be
monitored closely for bleeding and should “[l]imit activity due to high risk of
bleeding.”
• Exhibit 2 at 79, April 2, 2019 discharge instructions indicating that O.C.
“needs to be protected from injury as much as possible” and “should not
take part in contact sports unless directed by [her] physician.”
• Blood testing performed in April 2019 revealed platelet counts that varied,
from below 100,000/mm to above 200,000/mm – and the levels continued
to fluctuate into May. Ex. 1 at 116-121.
• Exhibit 2 at 226, a record of a June 1, 2019 emergency department visit
indicating that O.C. was experiencing “continued bruising but normalizing
platelet count” and indicating that O.C. should be “discharge[d] home with
precautions.” O.C.’s platelet count was 106,000/mm, below the normal
range. Id. at 240.
• Exhibit 2 at 294-96, a record of a July 19, 2019 visit with hematologist Dr.
Keri Streby, indicating that O.C. was doing well clinically with no bleeding
or bruising noted by family. O.C.’s platelet count was 131,000/mm which
was below normal. Id. at 262. Dr. Streby ordered that her platelet counts
continue to be checked monthly for the next few months. Id. at 264.
• Exhibit 1 at 129, laboratory results from August 19, 2019, recording that
O.C.’s platelet count was now 121,000/mm – still below the normal range
(140,000/mm to 400,000/mm).
• Exhibit 3 at 105 and 1 at 131, laboratory results from October 11, 2019,
recording that O.C.’s platelet count was now 187,000/mm, which is within
the normal reference range of 140,000/mm to 440,000/mm, although on the
lower end.
• O.C. had a well-child pediatric visit on September 16, 2019, at which time
her ITP was not discussed, and there is otherwise no record evidence of
blood testing performed that month. Ex. 4 at 4.
• Exhibit 3 at 105, an October 11, 2019 note of treating physician Dr. Streby,
characterizing O.C.’s platelet level of 187,000/mm as “almost normal,” and
thus suggesting that the physician did not view O.C.’s condition as having
5

Case 1:20-vv-01358-UNJ Document 32 Filed 03/30/22 Page 6 of 9
fully resolved. At this time, Dr. Streby ordered that O.C.’s platelet counts
continue to be checked monthly. Ex. 3 at 105.
• Exhibit 3 at 1-55, recording O.C.’s platelet counts from March 31, 2019 to
February 24, 2020. These records reflect that all results from October 11,
2019 to February 24, 2020 were within the normal reference range. See
generally Ex. 3 at 1-55 (documenting testing for O.C.’s platelet levels, with
no test results from September 2019).
• Exhibit 5 at ¶ 27, an affidavit of O.C.’s parent Jared Cummings, stating:
In late January/early February 2020, O.C. was declared in
remission of ITP. However, O.C. continues to have
restrictions in playing on the playground and participating in
other toddler activities. O.C. has further been discouraged
from participating in any contact or high impact sports in the
future for safety reasons.
The above medical entries establish that O.C.’s platelet counts fluctuated, but
generally remained below normal for just under five months after onset (which in this case
would likely be no earlier than March 27, 2019 – when O.C. first displayed the bruising
after hitting her head), or until mid-August. O.C.’s platelet count later returned to the
reference range for normal, as first revealed on October 11, 2019, and has stayed normal.
But that was the first platelet reading since the August abnormal reading – with no
evidence of any platelet testing for the intervening seven-plus week period. Thereafter,
treaters deemed monitoring necessary.
Respondent asserts that the records show that “OC had normal platelet counts at
all times after September 7, 2019,” (relying on the March 7th date of vaccination as the
likely start of onset – although the record does not establish this). Rule 4(c) Report at *6.
Thus, Respondent argues, I cannot find in favor of a petitioner based on the claims of a
petitioner alone, unsubstantiated by medical records or medical opinion, but must instead
dismiss given the lack of substantiated severity. Id. (citing Vaccine Act Section 13(a)(1)).
Petitioners assert that the severity requirement is met, because although O.C.’s
platelet count seven months after vaccination was in the normal range, her treating
physician nevertheless characterized her platelet count as “almost normal,” by implication
suggesting that it was not normal. Response at *5. Petitioners also assert that O.C. had
physical activity restrictions for over ten months, which has in other contexts been
deemed evidence of a residual effect. See H.S. v. Sec’y of Health & Hum. Servs., No. 14-
6

Case 1:20-vv-01358-UNJ Document 32 Filed 03/30/22 Page 7 of 9
1057V, 2015 WL 1588366 (Fed. Cl. Spec. Mstr. Mar. 13, 2015) (activity restriction due to
vaccinee’s vulnerable state after vaccine-induced syncope was part of treatment, and
supported a finding that the severity requirement was met despite lack of outward
symptoms of injury). Response at *1,7.
The severity requirement serves to exclude from compensation minor injuries. See
Wright v. Sec’y of Health & Hum. Servs., 22 F.4th 999, 1002 (Fed. Cir. 2022). In cases
where medical record evidence demonstrates residual effects that continue close to, but
do not quite reach, the six month mark, I must closely analyze the record, as supported
by other evidence like witness statements, to determine whether the severity requirement
is met. While Respondent is correct that I cannot find in favor of a petitioner based on the
petitioner’s claims alone, that in no way precludes me from finding in favor of a petitioner
based on a petitioner’s testimony that is supported by other record evidence.
In many cases, severity may be established even where the medical record
evidence suggests the underlying injury has mostly abated just prior to the six-month
deadline. In Silvestri v. Sec’y of Health & Hum. Servs., No. 19-1045V, 2021 WL 4205313
(Fed. Cl. Spec. Mstr. Aug. 16, 2021), for example, a Petitioner’s last treatment was five
months and three days after vaccination. Petitioner was not discharged from treatment at
this appointment. Thereafter, he continued to self-treat, and provided evidence that his
symptoms continued beyond that point. I found that the six month severity requirement
was satisfied. I acknowledged that it was a close call, but emphasized the remedial nature
of the Vaccine Program, in which “Petitioners are accorded the benefit of close calls.” Id.
at *4, citing Roberts v. Sec’y of Health & Hum. Servs., No. 09-427V, 2013 WL 5314698
(Fed. Cl. Spec. Mstr. Aug. 29, 2013).
Similarly, in Purtill v. Sec’y of Health & Hum. Servs., No. 18-0832V, 2019 WL
7212162 (Fed. Cl. Spec. Mstr. Nov. 12, 2019), a petitioner’s last treatment appointment
(for a SIRVA injury) was five months and three weeks after vaccination. By that date,
Petitioner had improved significantly, but was still experiencing some pain and other
symptoms. I reasoned that an injury that was causing pain at a week short of six months
was unlikely to fully resolve within the following week. Thus, I found that the six month
requirement was satisfied.
ITP, however, has been treated somewhat differently in the Program, since it is an
insidious injury – diagnosable only through blood testing, but also very easily treated
(when it is acute in nature). As an expert opined in Wright, vaccine-related ITP cases are
generally acute (lasting less than one year). Wright v. Sec’y of Health & Hum. Servs., No.
16-498V, 2019 WL 10610472, at *6 (Fed. Cl. Spec. Mstr. Jan. 18, 2019), mot. for rev.
granted and rev’d, 146 Fed. Cl. 608 (2019), rev’d, 22 F.4th 999 (Fed. Cir. 2022). The
7

Case 1:20-vv-01358-UNJ Document 32 Filed 03/30/22 Page 8 of 9
acute form of ITP can readily be remedied, making it easy to reverse the bruising and
other facially-evident clinical symptoms of it – and, in turn, eliminate the injury itself, even
though likely vaccine-caused, within six months of manifestation. See Johnson v. Sec’y
of Health & Hum. Servs., No. 14-113V, 2017 WL 772534, at *8 (Fed. Cl. Spec. Mstr. Jan.
6, 2017) (citing medical literature indicating that childhood acute ITP resolves within six
months in more than 70 percent of affected children).
In Wright, the child’s treating physician found that his ITP had resolved within three
months of onset. Wright, 22 F.4th at 1003. But this fact alone underscores how this case
is different – for there, the child’s ITP had resolved well prior to the six month mark, and
the Circuit found only that subsequent testing for platelet count drops was not itself a
sequelae of the injury. Here, by contrast, the record does not contain evidence that O.C.’s
ITP had resolved until right around the six-month mark. Thus, although I agree that certain
matters deemed evidence of injury-related sequelae (i.e., the activity limitations or the
treater’s view that a normal platelet level was “not normal enough”) are not good evidence
of severity under Wright, it is not clear from this record that in fact O.C.’s ITP had reversed
fully as of any date in September.
This matter presents a close case, but I find that it is more likely than not that O.C.
continued to experience residual effects of her condition (as evidenced by abnormally low
platelet levels) for at least six months – if barely. It can be inferred from the record
evidence that O.C.’s platelet levels returned to normal sometime between late August
and October 2019, when she was next tested again. But the specific date the “change”
occurred cannot be pinpointed, given the absence of testing in September 2019.
Nevertheless, O.C.’s levels remained low, if in normal ranges, when testing resumed, and
were not immediately deemed high enough for treaters to stop measuring until at least
February 2020. Ex. 3 at 1-7.
Under such circumstances - and although it is not certain that O.C.’s levels had
risen to normal ranges after September 27, 2019 (a better six-month date under the facts
of this case) – it is at least as likely that her levels had not yet gone into the normal range
until sometime between mid-September and when next tested in October. There is no
evidence to suggest the contrary in the record, and the absence of clear evidence
establishing the date of the “turn” does not render my reasoning faulty.
This – plus the fact that persuasive caselaw urges special masters to decide close
cases in a petitioner’s favor – leads me to find severity in Petitioners’ favor here. See
Silvestri, 2021 WL 4205313, at *4 (denying motion to dismiss for failure to meet six month
requirement and stating, “[a]t worst, this case represents a ‘close call,’ and in ‘the Vaccine
Program, petitioners are accorded the benefit of close calls’”) (citing Roberts v. Sec’y of
8

Case 1:20-vv-01358-UNJ Document 32 Filed 03/30/22 Page 9 of 9
Health & Hum. Servs., No. 09-427V, 2013 WL 5314698, at *10 (Fed. Cl. Spec. Mstr. Aug.
29, 2013) ; see also Purtill, 2019 WL 7212162, at *6; Grieshop v. Sec’y of Health & Hum.
Servs., No. 14-119V, 2015 WL 4557620 (Fed. Cl. Spec. Mstr. June 5, 2015).
I again note that ITP is unlike other injuries discussed above, where treatment may
linger for a time due to ongoing sequelae, making it easier to meet the severity
requirement in such circumstances. Had the record established a return to normal platelet
level readings within the six months from onset that did not fluctuate downward again, I
would have been compelled to dismiss the case despite the kinds of arguments
Petitioners make herein about ongoing monitoring – since Wright and other prior cases
stand for the proposition that these are not true sequelae. But the testing “gap” in this
case does not preponderantly establish a firm date the platelet levels changed, and I can
reasonably infer severity was met given the circumstances. (Of course, because I find
severity is barely met, Petitioners should expect any damages they receive to take into
account the fact that O.C.’s ITP was ultimately not all that severe once treatment began).
Accordingly, based on the record as a whole, I find that it is more likely than not
that O.C. suffered the residual effects of her condition for more than six months. Thus,
the motion to dismiss is DENIED.
V. Scheduling Order
Respondent shall file, by no later than Monday, March 28, 2022, a status report
indicating how he intends to proceed in this case or an amended Rule 4(c) Report.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9

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DOCUMENT 2: USCOURTS-cofc-1_20-vv-01358-1
Date issued/filed: 2022-07-29
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 06/24/2022) regarding 35 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made.
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Case 1:20-vv-01358-UNJ Document 38 Filed 07/29/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1358V
UNPUBLISHED
KATHERINE CUMMINGS and JARED Chief Special Master Corcoran
CUMMINGS, Parents of O.C., a Minor,
Filed: June 24, 2022
Petitioners,
v. Special Processing Unit (SPU);
Ruling on Entitlement; Concession;
SECRETARY OF HEALTH AND Table Injury; Measles Mumps
HUMAN SERVICES, Rubella (MMR) Vaccine;
Thrombocytopenic Purpura (ITP)
Respondent.
Emily Beth Ashe, Anapol Weiss, Philadelphia, PA, for Petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On October 9, 2020, Katherine Cummings and Jared Cummings, parents of O.C.,
a minor, filed a petition for compensation under the National Vaccine Injury Compensation
Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). On June 23, 2022,
Petitioners filed an amended petition (ECF No. 34). In the amended petition, Petitioners
allege that O.C. suffered idiopathic thrombocytopenic purpura (“ITP”) which was caused
by the measles mumps rubella (“MMR”) vaccine received on March 7, 2019. Amended
Petition at 1. Petitioners further allege that O.C. received the MMR vaccine in the United
States and that Petitioners have never received any compensation in the form of an award
or settlement for O.C.’s vaccine related injuries. Amended Petition at ¶¶ 3, 23. The case
was assigned to the Special Processing Unit of the Office of Special Masters.
1 Because this unpublished Ruling 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 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, 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§300aa (2012).

Case 1:20-vv-01358-UNJ Document 38 Filed 07/29/22 Page 2 of 2
On February 24, 2022, I issued findings of fact, determining that, although it was
close, more likely than not O.C. suffered the residual effects of ITP for more than six
months (ECF No. 30).
On March 28, 2022, Respondent filed an amended Rule 4(c) report (ECF No. 31).
In it, Respondent reserves the right to appeal the February 24, 2022 fact ruling. Amended
Rule 4(c) Report at 6. However, Respondent agrees that, in light of the fact ruling and
medical evidence, Respondent has concluded that O.C. suffered an episode of ITP
related to her March 7, 2019 MMR vaccination.3 Id. Therefore, subject to his right to
appeal the February 24 fact ruling, Respondent does not dispute that Petitioners have
satisfied all legal prerequisites for compensation under the Act. Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioners are entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Respondent disputed that the varicella, Hepatitis A, DTaP, Hib, and/or Prevnar vaccines caused O.C.’s
ITP. Amended Rule 4(c) Report at 6 n.6. Subsequently, Petitioners filed an amended petition omitting
claims relating to those vaccines. During a May 24, 2022 status conference, the parties agreed that after
Petitioners filed the amended petition, a ruling on entitlement would be appropriate. Scheduling Order,
issued May 24, 2022, at *2 (ECF No. 33).
2

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DOCUMENT 3: USCOURTS-cofc-1_20-vv-01358-2
Date issued/filed: 2023-02-28
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 01/11/2023) regarding 44 DECISION Stipulation/Proffer, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:20-vv-01358-UNJ Document 48 Filed 02/28/23 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1358V
UNPUBLISHED
KATHERINE CUMMINGS and JARED Chief Special Master Corcoran
CUMMINGS, Parents of O.C., a Minor,
Filed: January 11, 2023
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.
Emily Beth Ashe, Anapol Weiss, Philadelphia, PA, for Petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On October 9, 2020, Katherine Cummings and Jared Cummings, parents of O.C.,
a minor, filed a petition for compensation under the National Vaccine Injury Compensation
Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). On June 23, 2022,
Petitioners filed an amended petition (ECF No. 34). In the amended petition, Petitioners
allege that O.C. suffered idiopathic thrombocytopenic purpura (“ITP”) which was caused
by the measles mumps rubella (“MMR”) vaccine received on March 7, 2019. Amended
Petition at 1. Petitioners further allege that O.C. received the MMR vaccine in the United
States and that Petitioners have never received any compensation in the form of an award
or settlement for O.C.’s vaccine related injuries. Amended Petition at ¶¶ 3, 23. The case
was assigned to the Special Processing Unit of the Office of Special Masters.
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), Petitioners have 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).

Case 1:20-vv-01358-UNJ Document 48 Filed 02/28/23 Page 2 of 7
On June 24, 2022, a ruling on entitlement was issued, finding Petitioners entitled
to compensation for O.C.’s ITP. On January 10, 2023, Respondent filed a proffer on
award of compensation (“Proffer”) indicating compensation should be awarded in the form
of an amount not to exceed $35,000.00 to purchase the annuity contract described in
section II.B. of the proffer, and funds to satisfy a State of Ohio Medicaid lien in the amount
of $11,832.23. Proffer at 2-4. 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 the following:
• For pain and suffering, an amount not to exceed $35,000.00 to purchase an
annuity contract as described in section II.B of the proffer; and
• A lump sum payment of $11,832.23, representing compensation for
satisfaction of the State of Ohio Medicaid lien, in the form of a check payable
jointly to Petitioners and:
Treasurer, State of Ohio
Ohio Tort Recovery Unit
5475 Rings Road Suite 200
Dublin, OH 43017
Case Number: 1220674
Attn: Kyrsty Rider
Petitioners agree to endorse the check to Treasurer, State of Ohio for satisfaction
of the Medicaid lien.
These amounts represent all elements of compensation to which O.C. would be
entitled under Section 15(a). Petitioners agree.
The Clerk of 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 1:20-vv-01358-UNJ Document 48 Filed 02/28/23 Page 3 of 7
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
______________________________________
)
KATHERINE CUMMINGS and JARED )
CUMMINGS, Parents of O.C., a Minor, )
)
Petitioners, ) No. 20-1358V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
______________________________________ )
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Procedural History
On October 9, 2020, Katherine Cummings and Jared Cummings (“petitioners”) filed a
petition for compensation (“petition”), on behalf of their minor child, O.C., under the National
Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”),
as amended. The petition alleged that O.C. suffered idiopathic thrombocytopenic purpura
(“ITP”) that was caused by the measles mumps rubella (“MMR”), varicella, Hepatitis A
(“HepA”), diphtheria, tetanus, acellular-pertussis (“DTaP”), hemophilus influenza B (“hib”) and
pediatric pneumococcal (“Prevnar”) vaccines she received on March 7, 2019. See generally
Petition.
On January 28, 2022, respondent the Secretary of Health and Human Services
(“respondent”) filed a Vaccine Rule 4(c) Report and Motion to Dismiss. ECF No. 28. Petitioner
filed a response on February 11, 2022. ECF No. 29. On March 28, 2022, respondent filed an
Amended Vaccine Rule 4(c) Report advising that, in light of Chief Special Master Corcoran’s
Findings of Fact ruling that it is more likely than not that O.C. suffered the residual effects of
1

Case 1:20-vv-01358-UNJ Document 48 Filed 02/28/23 Page 4 of 7
ITP for more than six months (ECF No. 30), respondent did not dispute that petitioner had
satisfied all legal prerequisites for compensation under the Vaccine Act. Amended Rule 4(c)
Report at 2 (ECF No. 31). However, respondent did dispute that the varicella, HepA, DTaP,
Hib, and/or Prevnar vaccines caused O.C.’s ITP. Id. at 6 n.6. Accordingly, on June 23, 2022,
petitioners filed an amended petition, which alleges that O.C. suffered ITP that was caused by
the MMR vaccine received on March 7, 2019. ECF No. 34. On June 24, 2022, Chief Special
Master Corcoran issued a Ruling on Entitlement, finding that petitioners were entitled to vaccine
compensation for O.C.’s ITP.1 See Ruling on Entitlement (ECF No. 35).
II. Items of Compensation and Form of the Award
Based upon the evidence of record, respondent proffers, and the parties recommend, that
compensation be made through a lump sum and future annuity payments as described below, and
request that the Chief Special Master's decision and the Court's judgment award the following:2
A. Medicaid Lien
Respondent proffers that petitioners should be awarded funds to satisfy a State of Ohio
Medicaid lien in the amount of $11,832.23, which represents full satisfaction of any right of
subrogation, assignment, claim, lien, or cause of action the State of Ohio may have against any
individual as a result of any Medicaid payments the State of Ohio has made to or on behalf of
O.C. from the date of her eligibility for benefits through the date of judgment in this case as a
1 Respondent has no objection to the amount of the proffered award of damages set forth herein.
Assuming the Chief Special Master issues a damages decision in conformity with this proffer,
respondent waives his right to seek review of such damages decision. However, respondent
reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special
Master’s June 24, 2022, entitlement decision.
2 Should O.C. die prior to entry of judgment, the parties reserve the right to move the Court for
appropriate relief. In particular, respondent would oppose any award for future medical
expenses, future lost earnings, and future pain and suffering.
2

Case 1:20-vv-01358-UNJ Document 48 Filed 02/28/23 Page 5 of 7
result of O.C.’s alleged vaccine-related injury suffered on or about March 7, 2019, under Title
XIX of the Social Security Act. Reimbursement of the State of Ohio Medicaid lien shall be
made through a lump sum payment of $11,832.23, representing compensation for satisfaction of
the State of Ohio Medicaid lien, in the form of a check payable jointly to petitioners and:
Treasurer, State of Ohio
Ohio Tort Recovery Unit
5475 Rings Road Suite 200
Dublin, OH 43017
Case Number: 1220674
Attn: Kyrsty Rider
Petitioners agree to endorse the check to Treasurer, State of Ohio for satisfaction of the Medicaid
lien.
B. Pain and Suffering
For pain and suffering, an amount not to exceed $35,000.00 to purchase an annuity
contract,3 paid to the life insurance company4 from which the annuity will be purchased,5 subject
to the conditions described below. The annuity contract will be owned solely and exclusively by
3 In respondent’s discretion, respondent may purchase one or more annuity contracts from one
or more life insurance companies.
4 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.
5 Petitioners authorize the disclosure of certain documents filed by the petitioners in this 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.
3

Case 1:20-vv-01358-UNJ Document 48 Filed 02/28/23 Page 6 of 7
the Secretary of Health and Human Services and will provide payments to O.C. as set forth
below:
1. A certain Lump Sum of $25,341.01 payable on April 26, 2038.
2. A certain Lump Sum of $30,365.42 payable on April 26, 2041.
3. A certain Lump Sum of $35,961.78 payable on April 26, 2044.
The purchase price of the annuity described in this section II.B. shall neither be greater
nor less than $35,000.00. In the event that the cost of the certain annuity payments set forth
above varies from $35,000.00, the certain lump sum payment due on April 26, 2044, listed
above, shall be adjusted to ensure that the total cost of the annuity is neither less than nor greater
than $35,000.00. Should O.C. predecease any of the certain annuity payments set forth above,
said payments shall be made to her estate. Written notice to the Secretary of Health and Human
Services and to the Life Insurance Company shall be provided within twenty (20) days of O.C.’s
death.
These amounts represent all elements of compensation to which O.C. would be entitled
under 42 U.S.C. § 300aa-15(a). Petitioners agree.6
III. Summary of Recommended Payments Following Judgment
A. Medicaid lien: $11,832.23
B. An amount of $35,000.00 to purchase the annuity contract
described above in section II. B.
6 At the time payment is received, O.C. will be an adult, and thus guardianship is not required.
4

Case 1:20-vv-01358-UNJ Document 48 Filed 02/28/23 Page 7 of 7
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
Lara A. Englund
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
Tel: (202) 616-3661
Email: Kyle.Pozza@usdoj.gov
DATED: January 10, 2023
5