Judges: Nora Beth Dorsey
Filed: Feb. 07, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-0308V Filed: September 8, 2017 UNPUBLISHED ALAN L. JONES, Special Processing Unit (SPU); Petitioner, Damages Decision Based on Proffer; v. Influenza (Flu) Vaccine; Guillain- Barre Syndrome (GBS) SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner. Jennifer L. Reynaud, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES 1
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-0308V Filed: September 8, 2017 UNPUBLISHED ALAN L. JONES, Special Processing Unit (SPU); Petitioner, Damages Decision Based on Proffer; v. Influenza (Flu) Vaccine; Guillain- Barre Syndrome (GBS) SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner. Jennifer L. Reynaud, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES 1 ..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0308V
Filed: September 8, 2017
UNPUBLISHED
ALAN L. JONES,
Special Processing Unit (SPU);
Petitioner, Damages Decision Based on Proffer;
v. Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner.
Jennifer L. Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On March 9, 2016, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine
Act”). Petitioner alleged that he suffered Guillain-Barré syndrome (“GBS”) as a result of
an influenza (“flu”) vaccine administered on October 16, 2014. Petition at preamble.
The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special
Masters.
On August 18, 2017, the undersigned issued a ruling on entitlement, finding
petitioner entitled to compensation for GBS. On September 7, 2017, respondent filed a
proffer on award of compensation (“Proffer”) indicating petitioner should be awarded a
lump sum payment of $341,270.93, representing compensation for life care expenses
expected to be incurred during the first year after judgment ($87,067.33), lost earnings
($67,554.68), pain and suffering ($172,260.31), and past unreimbursable expenses
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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.
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).
($14,388.61); $732.16 to satisfy two State of Florida Medicaid liens; and an amount
sufficient to purchase an annuity contract, as described in Proffer Section II.D. Proffer
at 1-5. In the Proffer, respondent represented that petitioner agrees with the proffered
award. Id.
Based on the record as a whole, the undersigned finds that petitioner is entitled
to an award as stated in the Proffer. 3 Accordingly, pursuant to the terms stated in the
attached Proffer, the undersigned awards:
A. A lump sum payment of $341,270.93, representing compensation for life
care expenses expected to be incurred during the first year after
judgment ($87,067.33), lost earnings ($67,554.68), pain and suffering
($172,260.31), and past unreimbursable expenses ($14,388.61), in the
form of a check payable to petitioner, Alan L. Jones.
B. A lump sum payment of $717.36, representing compensation for
satisfaction of a State of Florida Medicaid lien, payable jointly to
petitioner and
Agency for Health Care Administration
Florida Medicaid Casualty Recovery Program
P.O. Box 12188
Tallahassee, FL 32317-2188
Case #: 640160
Petitioner agrees to endorse this payment to the State.
C. A lump sum payment of $14.80, representing compensation for
satisfaction of a State of Florida Medicaid lien, payable jointly to
petitioner and
The Rawlings Company
ATTN: Kevin E. James J.D.
Ref. No.: 76537760
P.O. Box 2000
LaGrange, KY 40031-2000
Petitioner agrees to endorse this payment to the State.
D. An amount sufficient to purchase the annuity contract described in the
Proffer Section II.D.
3
Should petitioner 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. Proffer at 3 n.2.
2
The clerk of the court is directed to enter judgment in accordance with this
decision. 4
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
4
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.
3
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
ALAN L. JONES,
Petitioner,
v. No. 16-308V
Chief Special Master Dorsey
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
On March 9, 2016, Alan L. Jones (“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. Respondent did not contest petitioner’s entitlement to
compensation in his Rule 4(c) Report, filed on August 18, 2017. On August 18, 2017, the Chief
Special Master found petitioner entitled to compensation.
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLP, and petitioner
engaged Roberta Hurley, B.S., Ed., to provide an estimation of Alan L. Jones’s future vaccine-
injury related needs. All items of compensation identified in the life care plan are supported by
the evidence, and are illustrated by the chart entitled Appendix A: Items of Compensation for
Alan L. Jones, attached hereto as Tab A. 1 Respondent proffers that Alan L. Jones should be
1
The chart at Tab A illustrates the annual benefits provided by the life care plan. The annual benefit years
run from the date of judgment up to the first anniversary of the date of judgment, and every year thereafter up to the
anniversary of the date of judgment.
-1-
awarded all items of compensation set forth in the life care plan and illustrated by the chart
attached at Tab A. Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, Alan L. Jones has suffered past
loss of earnings and will suffer a loss of earnings in the future. Therefore, respondent proffers
that Alan L. Jones should be awarded lost earnings as provided under the Vaccine Act, 42 U.S.C.
§ 300aa-15(a)(3)(A). Respondent proffers that the appropriate award for Alan L. Jones’s lost
earnings is $67,554.68. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that Alan L. Jones should be awarded $172,260.31 in actual and
projected pain and suffering. This amount reflects that any award for projected pain and
suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner
agrees.
D. Past Unreimbursable Expenses
Evidence supplied by petitioner documents Alan L. Jones’s expenditure of past
unreimbursable expenses related to his vaccine-related injury. Respondent proffers that
petitioner should be awarded past unreimbursable expenses in the amount of $14,388.61.
Petitioner agrees.
E. Medicaid Lien
Respondent proffers that Alan L. Jones should be awarded funds to satisfy two State of
Florida liens for a total amount of $732.16, which represents full satisfaction of any right of
subrogation, assignment, claim, lien, or cause of action that the State of Florida may have against
any individual as a result of any Medicaid payments the State of Florida has made to or on behalf
of Alan L. Jones from the date of his eligibility for benefits through the date of judgment in this
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case as a result of his vaccine-related injury suffered on or about October 16, 2014, under Title
XIX of the Social Security Act. Petitioner agrees to endorse these payments to the State.
II. Form of the Award
The parties recommend that the compensation provided to Alan L. Jones should be made
through a combination of lump sum payments 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. A lump sum payment of $341.270.93, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($87,067.33), lost earnings
($67,554.68), pain and suffering ($172,260.31), and past unreimbursable expenses ($14,388.61),
in the form of a check payable to petitioner, Alan L. Jones.
B. A lump sum payment of $717.36, representing compensation for satisfaction of a
State of Florida Medicaid lien, payable jointly to petitioner and
Agency for Health Care Administration
Florida Medicaid Casualty Recovery Program
PO Box 12188
Tallahassee, FL 32317-2188
Case #: 640160
C. A lump sum payment of $14.80, representing compensation for satisfaction of a State
of Florida Medicaid lien, payable jointly to petitioner and
The Rawlings Company
ATTN: Kevin E. James J.D.
Ref. No.: 76537760
PO Box 2000
LaGrange, KY 40031-2000
2
Should petitioner 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.
-3-
D. An amount sufficient to purchase an annuity contract, 3 subject to the conditions
described below, that will provide payments for the life care items contained in the life care plan,
as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company 4 from
which the annuity will be purchased. 5 Compensation for Year Two (beginning on the first
anniversary of the date of judgment) and all subsequent years shall be provided through
respondent’s purchase of an annuity, which annuity shall make payments directly to petitioner,
Alan L. Jones, only so long as Alan L. Jones is alive at the time a particular payment is due. At
the Secretary’s sole discretion, the periodic payments may be provided to petitioner in monthly,
quarterly, annual or other installments. The “annual amounts” set forth in the chart at Tab A
describe only the total yearly sum to be paid to petitioner and do not require that the payment be
made in one annual installment.
1. Growth Rate
Respondent proffers that a three percent (3%) growth rate should be applied to all non-
medical life care items, and a five percent (5%) growth rate should be applied to all medical life
care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid through annuity
payments should grow as follows: three percent (3%) compounded annually from the date of
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.
-4-
judgment for non-medical items, and five percent (5%) compounded annually from the date of
judgment for medical items. Petitioner agrees.
2. Life-contingent annuity
Petitioner will continue to receive the annuity payments from the Life Insurance
Company only so long as he, Alan L. Jones, is alive at the time that a particular payment is due.
Written notice shall be provided to the Secretary of Health and Human Services and the Life
Insurance Company within twenty (20) days of Alan L. Jones’s death.
3. Guardianship
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to petitioner, Alan L. Jones: $341,270.93
B. First Medicaid lien: $ 717.36
C. Second Medicaid lien: $ 14.80
D. An amount sufficient to purchase the annuity contract described
above in section II.C.
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
5
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.
-5-
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
/s Jennifer L. Reynaud
JENNIFER L. REYNAUD
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) 305-1586
Dated: September 7, 2017
-6-
Appendix A: Items of Compensation for Alan L. Jones Page 1 of 1
Lump Sum
Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-Life
2017 2018-Life
Medicare Part B Deductible 5% *
Medigap 5% M 2,221.08 2,221.08
Medicare Part D 5% M 2,152.06 2,152.06
Internist 5% *
Cardiologist 5% *
Neurologist 5% *
Homecare 3% M 33,945.00 33,945.00
PT 3% *
Power WC 3% *
Gel Seat 3% 218.00 218.00
Rollator 3% 168.82 33.76
Bath Bench 3% 86.98 17.40
Universal Cuff 3% 40.21 40.21
Lift Chair 3% 363.55 36.36
Transfer Board 3% 187.00 37.40
Bedside Table 3% 127.00 12.70
Adj Bed 3% 723.00 72.30
Home Bed Assist Handrail 3% 63.89 6.39
Modified Van 3% 46,114.40
Raised Toilet Seat 3% 29.99 6.00
Depends 3% M 351.35 351.35
Urinals 3% 71.04 71.04
Gloves 3% 27.50 27.50
Disp Pads 3% 176.46 176.46
Lost Earnings 67,554.68
Pain and Suffering 172,260.31
Past Unreimbursable Expenses 14,388.61
Medicaid Lien 717.36
Annual Totals 341,988.29 39,425.01
Note: Compensation Year 1 consists of the 12 month period following the date of judgment.
Compensation Year 2 consists of the 12 month period commencing on the first anniversary of the date of judgment.
As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for Yr 1 life care
expenses ($87,067.33), lost earnings ($67,554.68), pain and suffering ($172,260.31), and past unreimbursable
expenses ($14,388.61): $341,270.93.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and the lienholder, as reimbursement of the state's Medicaid lien: $717.36.
Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the date of judgment.
Annual amounts shall increase at the rates indicated above in column G.R., compounded annually from the date of judgment.
Items denoted with an asterisk (*) covered by health insurance and/or Medicare.
Items denoted with an "M" payable in twelve monthly installments totaling the annual amount indicated.
