In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Case No. 15-1083V
Filed: August 31, 2016
(Not to be published)
***********************
REBECCA SWANICK, on behalf of J.S.*
*
Petitioner, * Decision on Damages; Flumist;
v. * Hepatitis A; Menactra
* Tetanus-Diphtheria-acellular-Pertussis;
SECRETARY OF HEALTH * Syncopal Episode.
AND HUMAN SERVICES, *
*
Respondent. *
*
***********************
Brian S. McCormick, Orlando & Associates, Gloucester, MA for petitioner.
Michael P. Milmoe, United States Department of Justice, Washington, DC for respondent.
DECISION ON DAMAGES1
Gowen, Special Master:
On September 28, 2015, Rebecca Swanick (“petitioner”) filed a petition on behalf of her
minor daughter, J.S., for compensation under the National Vaccine Injury Compensation Program,
42 U.S.C. §300aa-10, et seq.2 [the “Vaccine Act” or “Program”]. Petitioner alleged that J.S.
suffered a syncopal episode resulting in a fractured jaw and broken teeth as a result of the
administration of Flumist, Hepatitis A, Tetanus-Diphtheria-acellular-Pertussis, and Menactra
vaccines on October 15, 2012. Petition at Preamble, ¶ 2, filed Sept. 28, 2015. On August 31, 2016
1
Because this unpublished ruling contains a reasoned explanation for the action in this case, I
intend to post this ruling 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). In accordance with Vaccine Rule 18(b), petitioner
has 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
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).
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respondent filed a Rule 4(c) Report [“Respondent’s Report”] in which she conceded that petitioner
was entitled to compensation. Resp’t Report at 1. The undersigned issued a Ruling on Entitlement
on that same day, finding petitioner as entitled to compensation based on an injury caused-in-fact
by one or more of the vaccines at issue.
Respondent also filed a Proffer on an award of compensation as part of her Report,
indicating that petitioner has agreed to compensation in the amount of $90,000.00, for all elements
of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Pursuant to
the terms in the attached Proffer, the undersigned awards petitioner the following
compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a):
1. A lump sum payment of $90,000.00 in the form of a check payable to petitioner,
Rebecca Swanick, as guardian/conservator of J.S.’s estate.
The clerk of the court is directed to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
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
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
REBECCA SWANICK, on behalf of J.S.,
Petitioner,
v. No. 15-1083V
Special Master Gowen
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT’S RULE 4(c) REPORT AND PROFFER ON DAMAGES
On behalf of her daughter, J.S., Rebecca Swanick (“petitioner”) filed a petition for
compensation (“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C.
§§ 300aa-1 to -34 (“Vaccine Act” or “Act”), as amended, on September 28, 2015. The Petition
alleges that J.S. received four vaccines on October 15, 2012, including Flumist, Hepatitis A,
Tdap, and Menactra, and subsequently suffered a syncopal episode which was caused-in-fact by
the four vaccinations. Petition at 1.
Medical personnel at the Division of Injury Compensation Programs (“DICP”) at the
Department of Health and Human Services have reviewed the Petition and medical records
filed in the case to determine whether petitioner qualifies for compensation under the Vaccine
Act. DICP has concluded that compensation is appropriate in this case. In accordance with
Vaccine Rule 4(c), the Secretary of Health and Human Services (“respondent”) submits the
following as her responsive report.
FACTUAL SUMMARY
On October 15, 2012, J.S. was seen by her pediatrician, Dr. Silva, for an annual
physical. J.S. was twelve years-old and wore braces. The pediatrician noted that J.S.’s mother
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requested the vaccines be administered prior to the start of the physical examination. Flumist,
Hep A, Tdap, and Menactra vaccines were administered by a nurse. Dr. Silva heard a yell
from the patient’s room and found J.S. face down on the floor, perpendicular to the table,
initially stiff and unconscious. The pediatrician rolled her over and stabilized her neck. J.S.
regained consciousness almost immediately. She was initially pale and sweaty with a normal
heart rate and respirations. Her blood pressure was 80/50. There was a small amount of blood
on her teeth and a small abrasion and bruise on her chin. She was given ice and ibuprofen and
once fully conscious, J.S. was helped to the table for an exam. Her sitting blood pressure was
recorded as 112/64. Petitioner’s Exhibit (“Pet. Ex.”) 2 at 7-14.
The physical exam showed J.S. to be alert and cooperative, but tearful and complaining
of pain in her left jaw. She was unable to open her jaw due to pain. She had a small laceration
of her tongue and spit out numerous teeth chips, one of which had her braces bracket on it. An
upper molar was fractured, but in place. She had a small abrasion on her right chin. The rest
of her exam was normal. The plan was to send her for an x-ray and then for her to go to the
orthodontist for the fractured teeth. Pet. Ex. 2 at 12-14. Dr. Silva noted that the x-ray showed
a mandible fracture and TMJ dislocation. Id. at 14. Dr. Silva sent J.S. to the emergency room
for a CT of her jaw. Id. at 16.
J.S. was seen in the emergency room at 3:43 p.m., and it was noted that she had at least
four dental fractures. The history noted that there had been no syncopal episodes in the past
and J.S. was otherwise healthy. A CT scan was performed that showed an angulated fracture
of the left mandible and disruption of the TMJ. She was referred to the oral surgeon on call in
the hospital who set her jaw with wire. Pet. Ex. 4 at 30-32.
2
Dr. Silva’s office filed a filed a VAERS report. Pet. Ex. 2 at 15. The VAERS report
was prepared by Nancy Burgess, LPN, who noted that the syncopal event occurred about ten
minutes following receipt of the four vaccinations. Id.
By October 26, 2014, J.S. could open and close her jaw without pain and could eat food
that was cut up in small pieces. However, she was not eating and had lost approximately ten
pounds. She was cleared to return to sports. Pet. Ex. 2 at 20.
J.S. suffered four fractured teeth as a result of the syncopal event, and all four required
dental repair. Her dentist has written a narrative report indicating that teeth #13 and #31
required multiple restorations and may require root canal therapy in the future. The dentist
also indicated that teeth #22 and #23 may need additional restorations or crowns in the future
due to sensitivity. Pet. Ex. 10 at 1. Her last dental treatment was on October 20, 2014, more
than two years after her syncopal event. Her dental issues delayed her orthodontic care and
removal of her braces by a period of at least nine months. Id.
ANALYSIS
DICP believes that J.S.’s syncopal event is related to the administration of one or more
of the vaccines she received on October 15, 2012. DICP agrees that J.S.’s alleged injury was
caused-in-fact by one or more of her vaccinations and that no other cause for J.S.’s condition
has been identified. See 42 U.S.C. § 300aa-13(a)(1)(B). Based on the medical records
outlined above, J.S. suffered the residual effects of her condition for more than six months.
See id. at § 300aa-11(c)(1)(D)(i). Therefore, based on the record as it now stands, petitioner
has satisfied all legal prerequisites for compensation under the Act.
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PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be
awarded $90,000.00 which represents all elements of compensation to which petitioner would
be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment as described below, and requests that the Special Master’s
decision and the Court’s judgment award the following: 1
A. A lump sum payment of $90,000.00 in the form of a check payable to petitioner,
Rebecca Swanick, as guardian/conservator of J.S.’s estate. This amount accounts for
all elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioner would
be entitled.
No payments shall be made until petitioner provides respondent with documentation
establishing that she has been appointed as the guardian/conservator of J.S.’s estate.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Acting Deputy Director
Torts Branch, Civil Division
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Should J.S. die prior to entry of judgment, respondent reserves the right to move the Court for
appropriate relief. In particular, respondent would oppose any award for future medical
expenses, future pain and suffering, and future lost wages.
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ALTHEA WALKER DAVIS
Senior Trial Counsel
Torts Branch, Civil Division
s/Michael P. Milmoe
MICHAEL P. MILMOE
Senior Trial Counsel
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-4125
Date: August 31, 2016
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