Judges: Nora Beth Dorsey
Filed: Feb. 14, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-908V Filed: October 13, 2017 UNPUBLISHED DANIEL DIVACK, Special Processing Unit (SPU); Petitioner, Damages Decision Based on Proffer; v. Influenza (Flu) Vaccine; Guillain- Barre Syndrome (GBS)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. Danielle Strait, Maglio Christopher & Toale, PA, Seattle, WA, for petitioner. Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAG
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-908V Filed: October 13, 2017 UNPUBLISHED DANIEL DIVACK, Special Processing Unit (SPU); Petitioner, Damages Decision Based on Proffer; v. Influenza (Flu) Vaccine; Guillain- Barre Syndrome (GBS)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. Danielle Strait, Maglio Christopher & Toale, PA, Seattle, WA, for petitioner. Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGE..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-908V
Filed: October 13, 2017
UNPUBLISHED
DANIEL DIVACK,
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.
Danielle Strait, Maglio Christopher & Toale, PA, Seattle, WA, for petitioner.
Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On August 20, 2015, 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 alleges that he suffered Guillain-Barre Syndrome (“GBS”) as
a result of an influenza (“flu”) vaccine administered on September 29, 2012. Petition at
1. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
On July 31, 2017, a ruling on entitlement was issued, finding petitioner entitled to
compensation for GBS. On October 13, 2017, respondent filed a proffer on award of
compensation (“Proffer”) indicating petitioner should be awarded an amount sufficient to
purchase an annuity contract as described in the proffer, as well as a lump sum
payment of $523,454.48, representing $134,265.01 in compensation for life care
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.
2National 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).
expenses expected to be incurred during the first year after judgment, $250,000.00 in
compensation for pain and suffering, and $139,189.47 in compensation for past
unreimbursable expenses. Proffer at 2-3. In the Proffer, respondent represented that
petitioner agrees with the proffered award.
Based on the record as a whole, the undersigned finds that petitioner is entitled to an
award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
the following:
• A lump sum payment of $523, 454.48, representing compensation for life
care expenses expected to be incurred during the first year after judgment
($134,265.01), pain and suffering ($250,000.00), and past unreimbursable
expenses ($139,189.47), in the form of a check payable to petitioner, Daniel
Divack; and
• An amount sufficient to purchase the annuity contract described in the
Proffer at Section II.B.
These amounts represents compensation for all damages that would be available under
§ 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision. 3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
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
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
DANIEL DIVACK,
Petitioner,
ECF
v. No. 15-908V
Chief Special Master Dorsey
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
On August 20, 2015, Daniel Divack (“petitioner”) filed a petition for vaccine injury
compensation alleging that he suffered Guillain-Barré syndrome (“GBS”), which was caused by
an influenza (“flu”) vaccine administered to him on September 29, 2012. Respondent filed his
Rule 4(c) Report electing not to contest entitlement to compensation on July 31, 2017. The
Chief Special Master issued a Ruling on Entitlement on July 31, 2017.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Shelly Kinney, MSN, RN, CCM, CNLP, and
petitioner engaged Kay Hairston, RN, BSN, CCM, CNLCP, to provide an estimation of Daniel
Divack’s future vaccine-injury related needs. All items of compensation identified in the joint
life care plan are supported by the evidence, and are illustrated by the chart entitled Appendix A:
Items of Compensation for Daniel Divack, attached hereto as Tab A. 1 Respondent proffers that
1
The chart at Tab A illustrates the annual benefits provided by the joint 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.
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petitioner should be awarded all items of compensation set forth in the joint 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, petitioner has not suffered any
loss of earnings (past or future) as a result of his vaccine-related injury. Therefore, an award of
lost earnings under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A), is not appropriate in this
case. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $250,000.00 in actual pain and
suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
D. Past Unreimbursable Expenses
Evidence supplied by petitioner documents Daniel Divack’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 $139,189.47.
Petitioner agrees.
II. Form of the Award
The parties recommend that the compensation provided to petitioner 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 $523,454.48, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($134,265.01), pain and
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.
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suffering ($250,000.00), and past unreimbursable expenses ($139,189.47), in the form of a check
payable to petitioner, Daniel Divack.
B. 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,
Daniel Divack, only so long as he 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 four percent (4%) 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
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
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.
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care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid through annuity
payments should grow as follows: four percent (4%) compounded annually from the date of
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 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 Daniel Divack’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, Daniel Divack: $523,454.48
B. An amount sufficient to purchase the annuity contract described
above in section II.B.
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
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
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s/Lisa A. Watts
LISA A. WATTS
Senior 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) 616-4099
Dated: October 13, 2017
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Appendix A: Items of Compensation for Daniel Divack Page 1 of 2
Lump Sum
Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Years 5-Life
2017 2018 2019 2020 2021-Life
Medicare Part B Premium 5% M 1,308.00 1,308.00 1,308.00 1,308.00 1,308.00
Medicare Part B Deductible 5% *
Medicare Supp F 5% M 3,258.00 3,258.00 3,258.00 3,258.00 3,258.00
Medicare Part D 5%
PCP 5% *
Mileage: PCP 4% 7.07 7.07 7.07 7.07 7.07
Physical Medicine & Rehab 5% *
Mileage: PM & R 4% 3.57 3.57 1.19 1.19 1.19
Psychiatry 5% *
Mileage: Psychiatry 4% 1.50 1.50 1.50 1.50 1.50
Podiatry 5% 285.00 285.00 285.00 285.00 285.00
Mileage: Podiatry 4% 1.63 1.63 1.63 1.63 1.63
Cardiology 5% *
ER 5% *
Ambulance Support 5% *
Counseling 4% *
Mileage: Counseling 4% 18.70
Care Mngt 4% M 8,250.00 8,250.00 8,250.00 8,250.00 8,250.00
Alprazolam 5% 156.00 156.00 156.00 156.00 156.00
Colace 4% 18.25 18.25 18.25 18.25 18.25
Wipes 4% 78.00 78.00 78.00 78.00 78.00
Gloves 4% 104.04 104.04 104.04 104.04 104.04
Hand Sanitizer 4% 98.64 98.64 98.64 98.64 98.64
PT Eval 4% 150.00 150.00 150.00 150.00 150.00
Mileage: PT/ OT Eval 4% 5.10 5.10 5.10 5.10 5.10
OT Eval 4% 150.00 150.00 150.00 150.00 150.00
PT 4% 1,980.00
Mileage: PT/ OT 4% 91.80
OT 4% 1,980.00
North Shore Wellness Progm 4% M 1,020.00 1,020.00 1,020.00 1,020.00 1,020.00
FES Bike Supplies 4% M 3,900.00 3,900.00 3,900.00 3,900.00 3,900.00
Mileage: North Shore Wellness Prgm 4% M 928.20 928.20 928.20 928.20 928.20
Assistive Tech Clinic 4% 740.00 370.00 370.00 370.00 370.00
Mileage: Assistive Tech Clinic 4% 6.53 4.35 4.35 4.35 4.35
Seating & Equip Clinic 4% *
Mileage: Seating & Equip Clinic 4% 5.10 1.02 1.02 1.02 1.02
Appendix A: Items of Compensation for Daniel Divack Page 2 of 2
Lump Sum
Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Years 5-Life
2017 2018 2019 2020 2021-Life
Power WC 4% * 12,364.00 2,472.80 2,472.80 2,472.80 2,472.80
Power WC Maint 4% 1,236.40 1,236.40 1,236.40 1,236.40 1,236.40
Specialty Cushion for WC 4% 425.00 106.25 106.25 106.25 106.25
Therapeutic Recliner 4% 838.65 83.87 83.87 83.87 83.87
Wheeled Walker 4% 146.40 29.28 29.28 29.28 29.28
Gait Belt 4% 21.00 4.20 4.20 4.20 4.20
Low Air Loss Mattress 4% 697.13 69.71 69.71 69.71 69.71
Adj Bed 4% 3,042.32 304.23 304.23 304.23 304.23
Over the Bed Table 4% 208.10 20.81 20.81 20.81 20.81
Urinals 4% 23.90 23.90 23.90 23.90 23.90
Electric Stand-Assist Lift 4% 2,800.00 400.00 400.00 400.00 400.00
Second Sling for Lift 4% 214.00 214.00 214.00 214.00 214.00
Shower Commode Chair 4% 810.79 162.16 162.16 162.16 162.16
Hand Held Shower 4% 90.95 9.10 9.10 9.10 9.10
Grab Bars 4% 42.95 4.30 4.30 4.30 4.30
AFOs 4% *
Bilateral Hand Splints 4% *
ECU 4% 298.99 42.71 42.71 42.71 42.71
Audio Monitor 4% 35.00 17.50 17.50 17.50 17.50
iPad Stylus 4% 26.67 26.67 26.67 26.67 26.67
Home Health Aide (Offset by LTC) 4% M 45,262.50 46,785.58 48,250.07 56,067.44 84,862.50
Home Mods 0% 16,810.13
Van Mods 4% 24,000.00 3,000.00 3,000.00 3,000.00 3,000.00
Van Mod Maint 4% 325.00 325.00 325.00 325.00 325.00
Pain and Suffering 250,000.00
Past Unreimbursable Expenses 139,189.47
Annual Totals 523,454.48 75,436.84 76,898.95 84,716.32 113,511.38
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 ($134,265.01), pain and suffering ($250,000.00), and past unreimbursable expenses ($139,189.47): 523,454.48.
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.
