Uglialoro v. Secretary of Health and Human Services ( 2021 )


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  •               In the United States Court of Federal Claims
    OFFICE OF SPECIAL MASTERS
    No. 20-139V
    Filed: May 24, 2021
    * * * * * * * * *                     * *
    * *
    KATELYN UGLIALORO                        *
    on behalf of L.U., a minor,              *             UNPUBLISHED
    *
    Petitioner,                 *             Decision on Damages;
    *             Proffer; Concession;
    *             Fistula; Abscess;
    v.                                       *             Measles-mumps-rubella-varicella
    *             (“MMRV”).
    SECRETARY OF HEALTH                      *
    AND HUMAN SERVICES,                      *
    *
    Respondent.                 *
    * * * * * * * * * * * * *
    James Moyles, Esq., Moyles Muzic Law, Lemoyne, PA, for petitioner.
    Mary Holmes, Esq., US Department of Justice, Washington, DC, for respondent.
    DECISION AWARDING DAMAGES1
    Roth, Special Master:
    On February 10, 2020, Katelyn Uglialoro (“petitioner”) filed a petition for compensation
    under the National Vaccine Injury Compensation Program on behalf of L.U., her minor daughter.2
    Petitioner alleges that L.U. received a measles-mumps-rubella-varicella (“MMRV”) vaccination
    on March 25, 2019, and thereafter suffered from an infected sinus tract fistula/abscess on her left
    thigh. See Petition at 1, ECF No. 1.
    1 Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
    Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347,
    
    116 Stat. 2899
    , 2913 (codified as amended at 
    44 U.S.C. § 3501
     note (2006)). This means the Decision will
    be available to anyone with access to the internet. However, the parties may object to the Decision’s
    inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
    has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
    a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
    medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
    privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. 
    Id.
    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).
    1
    On February 22, 2021, respondent filed a report pursuant to Vaccine Rule 4(c) conceding
    that L.U.’s injury was more likely than not caused by the MMRV vaccination that she received on
    March 25, 2019, and that petitioner is entitled to compensation in this case. Respondent’s Report
    at 1, ECF No. 30.
    On February 25, 2021, I issued a ruling on entitlement finding that petitioner was entitled
    to compensation. Ruling on Entitlement, ECF No. 33.
    Respondent filed a proffer on May 24, 2021, agreeing to issue the following payment:
    A lump sum of $168.97, representing past unreimbursable expenses, in the form
    of a check payable to petitioner, Katelyn Uglialoro.
    A lump sum of $911.41, representing compensation for satisfaction of the
    Commonwealth of Pennsylvania lien, in the form of a check jointly payable to
    petitioner and the Commonwealth of Pennsylvania Department of Human
    Services:
    Commonwealth of Pennsylvania
    Bureau of Program Integrity
    Division of Third Party Liability
    Recovery Section
    P.O. Box 8486
    Harrisburg, PA 17105-8486
    ID #: 300 430 771
    Attn: Bradley Hill
    Future annuity payments of $23,845.94 payable on February 20, 2033, $26,252.63
    payable on February 20, 2036, and $28,569.20 payable on February 20, 2039,
    representing pain and suffering, payable to the life insurance company from
    which the annuity will be purchased.
    These foregoing amounts represent compensation for all damages that would be
    available under § 300aa-15(a).
    Proffer, ECF No. 39.
    I adopt the respondent’s proffer attached hereto, and award compensation in the amount
    and on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance
    with this decision. 3
    IT IS SO ORDERED.
    s/ Mindy Michaels Roth
    Mindy Michaels Roth
    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
    ____________________________________
    )
    KATELYN UGLIALORO                      )
    on behalf of L.U., a minor,            )
    )
    Petitioner,             )
    )    No. 20-139V
    v.                              )    Special Master Roth
    )    ECF
    SECRETARY OF HEALTH AND                )
    HUMAN SERVICES,                        )
    )
    Respondent.             )
    ____________________________________)
    RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
    On February 22, 20121, respondent filed a Vaccine Rule 4(c) report concluding that L.U.
    suffered an injury that is compensable under the National Childhood Vaccine Injury Act of 1986,
    as amended, 42 U.S.C. §§300aa-10 to -34. Accordingly, on February 25, 2021, the Special
    Master issued a Ruling on Entitlement, finding that petitioner was entitled to vaccine
    compensation for L.U.’s injury. Respondent now proffers that petitioner receive an award as
    follows:
    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 Special Master's decision and the Court's judgment award the following:1
    1  Should L.U. 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.
    A.      Past Unreimbursable Expenses
    Evidence supplied by petitioner documents her expenditure of past unreimbursable
    expenses related to L.U.'s vaccine-related injury. Respondent proffers that petitioner should be
    awarded past unreimbursable expenses in the amount of $168.97, in the form of a check payable
    to petitioner. Petitioner agrees.
    B.      Medicaid Lien
    Respondent proffers that L.U. should be awarded funds to satisfy a Commonwealth of
    Pennsylvania Medicaid lien in the amount of $911.41, which represents full satisfaction of any
    right of subrogation, assignment, claim, lien, or cause of action the Commonwealth of
    Pennsylvania may have against any individual as a result of any Medicaid payments that the
    Commonwealth of Pennsylvania has made to or on behalf of L.U. from the date of her eligibility
    for benefits through the date of judgment in this case as a result of her vaccine-related injury
    suffered on or about March 25, 2019, under Title XIX of the Social Security Act.
    Reimbursement of the Commonwealth of Pennsylvania lien shall be made through a lump sum
    payment of $911.41, representing compensation for satisfaction of the Commonwealth of
    Pennsylvania lien, payable jointly to petitioner and Commonwealth of Pennsylvania Department
    of Human Services, and mailed to:
    Commonwealth of Pennsylvania
    Bureau of Program Integrity
    Division of Third Party Liability
    Recovery Section
    P.O. Box 8486
    Harrisburg, PA 17105-8486
    ID #: 300 430 771
    Attn: Bradley Hill
    2
    Petitioner agrees to endorse this payment to Commonwealth of Pennsylvania Department of
    Human Services.
    C.      Pain and Suffering
    For pain and suffering, 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 L.U. as set forth below:
    1. A certain lump sum of $23,845.94 payable on February 20, 2033.
    2. A certain lump sum of $26,252.63 payable on February 20, 2036.
    3. A certain lump sum of $28,569.20 payable on February 20, 2039.
    Should L.U. predecease any of the certain lump sum 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 L.U.’s death.
    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
    These amounts represent all elements of compensation to which L.U. would be entitled under 42
    U.S.C. § 300aa-15(a). Petitioner agrees. 5
    II.       Summary of Recommended Payments Following Judgment
    A.   Past Unreimbursble Expenses:                                         $168.97
    B.   Medicaid lien:                                                       $911.41
    C.   An amount sufficient to purchase the annuity contract described
    above in section II. C.
    Respectfully submitted,
    BRIAN M. BOYNTON
    Acting Assistant Attorney General
    C. SALVATORE D’ALESSIO
    Acting Director
    Torts Branch, Civil Division
    HEATHER L. PEARLMAN
    Acting Deputy Director
    Torts Branch, Civil Division
    /s/Mary E. Holmes
    MARY E. HOLMES
    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) 616-5022
    Fax: (202) 616-4310
    DATED: 5/24/2021
    5
    At the time payment is received, L.U. will be an adult, and thus guardianship is not
    required.
    4
    

Document Info

Docket Number: 20-139

Judges: Mindy Michaels Roth

Filed Date: 6/21/2021

Precedential Status: Non-Precedential

Modified Date: 6/21/2021