In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
JODI K. HUPE, mother and *
next friend of B.A.H., a minor, *
* No. 14-448V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: July 6, 2015
*
SECRETARY OF HEALTH * Damages; decision based on proffer;
AND HUMAN SERVICES, * human papillomavirus (“HPV”);
* syncope; jaw and teeth injury.
Respondent. *
******************** *
Theodore G. Pashos, Niedner Bodeux et al., St. Charles, MO, for Petitioner;
Amy P. Kokot, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING DAMAGES1
On May 27, 2014, Jodi K. Hupe filed a petition on behalf of her daughter,
B.A.H., seeking compensation under the National Vaccine Injury Compensation
Program, 42 U.S.C. § 300aa—10 through 34 (2006), alleging that the human
papillomavirus (“HPV”) vaccination caused B.A.H. to suffer syncope resulting in
injuries to her jaw and teeth. On August 29, 2014, the undersigned determined that
petitioner is entitled to compensation under the Vaccine Act.
On February 10, 2015, respondent filed a Proffer on Award of
Compensation, to which petitioner agrees. Based upon the record as a whole, the
special master finds the proffer reasonable and that petitioner is entitled to an
1
The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
award as stated in the Proffer. 2 Pursuant to the attached Proffer, the court awards
petitioner:
A. A lump sum payment of $5,395.00, representing compensation for past
unreimbursable vaccine-related medical expenses, in the form of a
check payable to petitioner, Jodi K. Hupe.
B. An amount sufficient to purchase an annuity contract, paid to the life
insurance company from which the annuity will be purchased, subject
to the conditions described in the attached Proffer (Appendix A), that
will provide payments to B.A.H. as set forth below:
1. Beginning October 17, 2015, $20,000.00 payable annually for six
(6) years certain only.
2. On October 17, 2022, a certain lump sum of $10,156.21.
This amount represents all remaining elements of compensation to
which B.A.H. would be entitled under 42 U.S.C. § 300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Respondent previously filed a proffer for award on December 22, 2014. The
undersigned issued a decision based on this proffer on December 30, 2014, and later granted
petitioner’s joint motion to vacate his decision allowing the parties to amend the form of the
award. See order, issued Jan 14, 2015.
The undersigned issued a second decision on February 12, 2015, based on respondent’s
February 10, 2015 proffer and later granted a motion to vacate that decision to correct for an
error in the award not in accordance with the proffer. See order, issued June 23, 2015.
2
Case 1:14-vv-00448-UNJ Document 40-1 Filed 07/06/15 Page 1 of 4
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
___________________________________
)
JODY K. HUPE, mother and next friend of )
B.A.H., a minor, )
)
Petitioner, ) No. 14-448V ECF
)
v. ) Special Master Moran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On May 27, 2014, petitioner, on behalf of her minor daughter, B.A.H., filed a petition for
compensation under the National Childhood Vaccine Injury Act of 1986 (the “Vaccine Act”), as
amended. 42 U.S.C. §§ 300aa-1 et seq. Petitioner alleges that, after B.A.H. received the human
papillomavirus vaccine on June 1, 2011, she suffered syncope resulting in injuries to her jaw and
teeth. Petitioner alleges a theory based on causation-in-fact. The Secretary of Health and
Human Services (“respondent”) filed a Vaccine Rule 4(c) Report, conceding that B.A.H.
suffered from syncope resulting in mandibular fractures, multiple lacerations, tooth fractures, and
requiring multiple surgeries, and recommending that petitioner be awarded compensation.
Respondent hereby submits the following proffer regarding the award of compensation. This
proffer does not address final attorneys’ fees and litigation costs. Petitioner is additionally
entitled to reasonable attorneys’ fees and litigation costs, to be determined at a later date upon
petitioner submitting substantiating documentation.
Case 1:14-vv-00448-UNJ Document 40-1 Filed 07/06/15 Page 2 of 4
I. Items of Compensation
A. Future Medical Care Expenses
Respondent proffers that based on the evidence of record, petitioner is entitled to an
award for projected unreimbusable medical care expenses as provided under the Vaccine Act, 42
U.S.C. § 300aa-15(a)(1)(A), in the amount of $77,040.38. Petitioner agrees.
B. Lost Future Earnings
Respondent proffers that based upon the evidence of record, B.A.H. is not likely to suffer
a loss of earnings as a result of her vaccine injury. Accordingly, petitioner should not be
awarded lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A).
Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded a lump sum of $50,000.00 for
B.A.H.’s actual pain and suffering as provided under the Vaccine Act, 42 U.S.C. § 300aa-
15(a)(4). Petitioner agrees.
D. Past Unreimburseable Expenses
Evidence supplied by petitioner documents her expenditure of past unreimbursable
expenses related to B.A.H.’s vaccine-related injury. Respondent proffers that petitioner should
be awarded past unreimbursable expenses in the amount of $5,395.00. Petitioner agrees.
E. Medicaid Lien
Petitioner represents that there are no outstanding Medicaid liens related to B.A.H.’s
vaccine-related injury.
2
Case 1:14-vv-00448-UNJ Document 40-1 Filed 07/06/15 Page 3 of 4
II. Form of the Award
The parties recommend that the compensation provided to petitioner, to be received on
behalf of B.A.H., should be made through a combination of a lump sum payment and future
annuity payments as described below, and request that the special master's decision and the
Court's judgment award the following: 1
A. A lump sum payment of $5,395.00, representing compensation for past
unreimbursable vaccine-related medical expenses, in the form of a check payable to petitioner.
B. An amount sufficient to purchase an annuity contract, 2 paid to the life insurance
company3 from which the annuity will be purchased, 4 subject to the conditions described below,
that will provide payments to B.A.H. as set forth below:
1. Beginning October 17, 2015, $20,000.00 payable annually for six (6) years
certain only.
2. On October 17, 2022, a certain lump sum of $10,156.21.
1
Should B.A.H. 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
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.
4
Petitioner authorizes the disclosure of certain documents filed by the petitioner 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 1:14-vv-00448-UNJ Document 40-1 Filed 07/06/15 Page 4 of 4
This amount represents all remaining elements of compensation to which B.A.H.
would be entitled under 42 U.S.C. § 300aa-15(a).
Petitioner agrees. 5 Should B.A.H. predecease any of the certain 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
B.A.H.’s death.
Respectfully submitted,
JOYCE R. BRANDA
Acting Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
VORIS E. JOHNSON, JR.
Assistant Director
Torts Branch, Civil Division
/s/ Lindsay Corliss
LINDSAY CORLISS
Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 616-9197
Dated: February 10, 2015 Fax: (202) 616-4310
5
At the time payment is received, B.A.H. will be an adult, and thus guardianship is not
required.
4