Filed: Apr. 08, 2013
Latest Update: Feb. 12, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-269V Filed: April 8, 2013 Not for publication ************************************* DONALD PRESGRAVE, * * Petitioner, * * Damages decision based on proffer v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* Ronald C. Homer, Boston, MA, for petitioner. Alexis B. Babcock, Washington, DC, for respondent. MILLMAN, Special Master DECISION AWARDING DAMAGES1 On April 8,
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-269V Filed: April 8, 2013 Not for publication ************************************* DONALD PRESGRAVE, * * Petitioner, * * Damages decision based on proffer v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* Ronald C. Homer, Boston, MA, for petitioner. Alexis B. Babcock, Washington, DC, for respondent. MILLMAN, Special Master DECISION AWARDING DAMAGES1 On April 8, 2..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-269V
Filed: April 8, 2013
Not for publication
*************************************
DONALD PRESGRAVE, *
*
Petitioner, *
* Damages decision based on proffer
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Ronald C. Homer, Boston, MA, for petitioner.
Alexis B. Babcock, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING DAMAGES1
On April 8, 2013, respondent filed a Proffer on Award of Compensation. Based on the
record as a whole, the special master finds that petitioner is entitled to the award as stated in the
Proffer. Pursuant to the terms stated in the attached Proffer, the court awards petitioner:
1
Because this decision contains a reasoned explanation for the special master's action in this case, the
special master intends to post this decision on the United States Court of Federal Claims's website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the
public unless they contain trade secrets or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted
invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to delete
such information prior to the document=s disclosure. If the special master, upon review, agrees that the
identified material fits within the banned categories listed above, the special master shall delete such
material from public access.
a. a lump sum payment of $778,627.17, representing compensation for life care
expenses for the first year after judgment ($12,713.29), lost earnings ($588,662.36),
pain and suffering ($176,832.07), and past unreimbursable expenses ($419.45), in the
form of a check payable to Donald Presgrave, petitioner; and
b. an amount sufficient to purchase an annuity contract subject to the conditions
described in section II. B. of the attached Proffer.
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.2
IT IS SO ORDERED.
Dated: April 8, 2013 /s/ Laura D. Millman
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party=s filing a notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
DONALD PRESGRAVE, ) ECF
)
Petitioner, ) No. 12-269V
v. ) Special Master Millman
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLCP, and
petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of Donald
Presgrave’s future vaccine-injury related needs. For the purposes of this proffer, the term
“vaccine related” is as described in respondent’s Rule 4(c) report filed on July 24, 2012. 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 Donald Presgrave,
attached hereto as Tab A. 1 Respondent proffers that Donald Presgrave 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.
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.
-1-
B. Lost Future Earnings
The parties agree that based upon the evidence of record, Donald Presgrave has suffered
a past loss of earnings and will continue to suffer a loss of earnings in the future. Therefore,
respondent proffers that Donald Presgrave 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
Donald Presgrave’s lost earnings is $588,662.36. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that Donald Presgrave should be awarded $176,832.07 in actual and
projected pain and suffering. This amount reflects that the 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 Donald Presgrave’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 $419.45. Petitioner
agrees.
E. Medicaid Lien
Petitioner represents that there are no outstanding Medicaid liens against him.
II. Form of the Award
The parties recommend that the compensation provided to Donald Presgrave should be
made through a combination of lump sum payments and future annuity payments as described
below, and request that the special master's decision and the Court's judgment award the
following:
A. A lump sum payment of $778,627.17, representing compensation for life care
-2-
expenses expected to be incurred during the first year after judgment ($12,713.29), lost earnings
($588,662.36), pain and suffering ($176,832.07), and past unreimbursable expenses ($419.45), in
the form of a check payable to petitioner, Donald Presgrave.
B. An amount sufficient to purchase an annuity contract, 2 subject to the conditions
described below, that will provide payments for the life care items contained in the joint life care
plan, as illustrated by the chart at Tab A. attached hereto, paid to the life insurance company 3
from which the annuity will be purchased. 4 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,
Donald Presgrave, only so long as Donald Presgrave 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.
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-
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
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, Donald Presgrave, 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 Donald Presgrave’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, Donald Presgrave: $778,627.17
B. An amount sufficient to purchase the annuity contract described
above in section II. B.
Respectfully submitted,
STUART F. DELERY
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
-4-
LINDA S. RENZI
Senior Trial Counsel
Torts Branch, Civil Division
/S/ALEXIS B. BABCOCK
ALEXIS B. BABCOCK
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Telephone: (202) 616-7678
Dated: April 8, 2013
-5-
Appendix A: Items of Compensation for Donald Presgrave Page 1 of 3
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8
2013 2014 2015 2016 2017 2018 2019 2020
Multi Plan Health Premium 5% M 3,017.40 3,017.40 3,017.40 3,017.40 3,017.40 3,017.40 3,017.40 3,017.40
Medicare Part B Deductible 5%
Neurologist 5% * 210.00 210.00 35.00 35.00 35.00 35.00 35.00 35.00
Psychologist 5% * 576.00 576.00 576.00
Future Physiatrist/Other Specialist 5% * 35.00 7.00 7.00 7.00 7.00 7.00 7.00 7.00
EMG 5% * 780.00 780.00 780.00
Hydroxyzine 5% * 63.00 63.00 63.00 63.00 63.00 63.00 63.00 63.00
Buspirone 5% * 63.00 63.00 63.00 63.00 63.00 63.00 63.00 63.00
Zoloft 5% * 63.00 63.00 63.00 63.00 63.00 63.00 63.00 63.00
Aspirin 4% 10.66 10.66 10.66 10.66 10.66 10.66 10.66 10.66
Tylenol 4% 94.75 94.75 94.75 94.75 94.75 94.75 94.75 94.75
Advil 4% 68.26 68.26 68.26 68.26 68.26 68.26 68.26 68.26
PT 4% * 864.00 864.00 216.00 216.00
OT 4% * 864.00 864.00 144.00 144.00
Shower Transfer Bench 4% 130.00 18.57
Hand Held Shower 4% 32.00 4.57
Grab Bars 4% 274.00 274.00
Over the Toilet Commode 4% 179.00 25.57
Kitchen/Pers. Care/Adapt. Equip. 4% 250.00 150.00 30.00 30.00
Step Stool 4% 48.95 4.90 4.90 4.90 4.90 4.90 4.90 4.90
YMCA 4% M 446.00 396.00 396.00 396.00 396.00 396.00 396.00 396.00
Home Care 4% M 3,276.00 3,276.00 3,276.00 3,276.00 3,276.00 3,276.00 4,368.00 4,368.00
Handy Man 4% M 600.00 600.00 600.00 600.00 600.00 600.00 600.00 600.00
Mileage 4% M 1,109.27 1,105.25 1,031.95 1,031.95 1,031.95 1,031.95 1,031.95 1,031.95
Lost Earnings 588,662.36
Pain and Suffering 176,832.07
Past Unreimbursable Expenses 419.45
Annual Totals 778,627.17 11,283.22 8,730.92 9,510.92 9,090.92 8,880.92 11,549.92 10,535.63
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 ($12,713.29), lost earnings ($588,662.36), pain and suffering ($176,832.07), and past unreimbursable
expenses ($419.45): $778,627.17
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.
At respondent's discretion, items denoted with "M" payable in 12 monthly installments totaling the annual amount indicated.
Appendix A: Items of Compensation for Donald Presgrave Page 2 of 3
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 9 Year 10 Year 11 Year 12 Year 13 Year 14 Years 15-16 Year 17
2021 2022 2023 2024 2025 2026 2027-2028 2029
Multi Plan Health Premium 5% M 3,017.40 3,017.40 3,017.40 3,017.40 3,017.40 3,017.40 3,017.40
Medicare Part B Deductible 5% 147.00
Neurologist 5% * 35.00 35.00 35.00 35.00 35.00 35.00 35.00 18.80
Psychologist 5% * 576.00 192.00
Future Physiatrist/Other Specialist 5% * 7.00 7.00 7.00 7.00 7.00 7.00 7.00 12.00
EMG 5% * 780.00 780.00
Hydroxyzine 5% * 63.00 63.00 63.00 63.00 63.00 63.00 63.00 63.00
Buspirone 5% * 63.00 63.00 63.00 63.00 63.00 63.00 63.00 63.00
Zoloft 5% * 63.00 63.00 63.00 63.00 63.00 63.00 63.00 63.00
Aspirin 4% 10.66 10.66 10.66 10.66 10.66 10.66 10.66 10.66
Tylenol 4% 94.75 94.75 94.75 94.75 94.75 94.75 94.75 94.75
Advil 4% 68.26 68.26 68.26 68.26 68.26 68.26 68.26 68.26
PT 4% * 216.00 216.00 72.00
OT 4% * 144.00 144.00 48.00
Shower Transfer Bench 4% 18.57 18.57 18.57 18.57 18.57 18.57 18.57 18.57
Hand Held Shower 4% 4.57 4.57 4.57 4.57 4.57 4.57 4.57 4.57
Grab Bars 4% 39.14 39.14 39.14 39.14 39.14 39.14 39.14 39.14
Over the Toilet Commode 4% 25.57 25.57 25.57 25.57 25.57 25.57 25.57 25.57
Kitchen/Pers. Care/Adapt. Equip. 4% 30.00 30.00 30.00 30.00 30.00 30.00 30.00 30.00
Step Stool 4% 4.90 4.90 4.90 4.90 4.90 4.90 4.90 4.90
YMCA 4% M 396.00 396.00 396.00 396.00 396.00 396.00 396.00 348.00
Home Care 4% M 4,368.00 4,368.00 4,368.00 4,368.00 4,368.00 4,368.00 4,368.00 6,552.00
Handy Man 4% M 600.00 600.00 600.00 600.00 600.00 600.00 600.00 600.00
Mileage 4% M 1,031.95 1,031.95 1,031.95 1,031.95 1,031.95 1,031.95 1,031.95 1,031.95
Lost Earnings
Pain and Suffering
Past Unreimbursable Expenses
Annual Totals 9,940.77 10,720.77 10,300.77 10,516.77 10,720.77 10,300.77 9,940.77 9,507.17
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 ($12,713.29), lost earnings ($588,662.36), pain and suffering ($176,832.07), and past unreimbursable
expenses ($419.45): $778,627.17
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.
At respondent's discretion, items denoted with "M" payable in 12 monthly installments totaling the annual amount indicated.
Appendix A: Items of Compensation for Donald Presgrave Page 3 of 3
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 18 Year 19 Year 20 Year 21 Year 22 Year 23 Year 24 Years 25-Life
2030 2031 2032 2033 2034 2035 2036 2037-Life
Multi Plan Health Premium 5% M
Medicare Part B Deductible 5% 147.00 147.00 147.00 147.00 147.00 147.00 147.00 147.00
Neurologist 5% * 18.80 18.80 18.80 18.80 18.80 18.80 18.80 18.80
Psychologist 5% * 38.40 38.40 38.40 38.40 38.40 38.40 38.40 38.40
Future Physiatrist/Other Specialist 5% * 12.00 12.00 12.00 12.00 12.00 12.00 12.00 12.00
EMG 5% * 260.00 52.00 52.00 52.00 52.00 52.00 52.00 52.00
Hydroxyzine 5% * 63.00 63.00 63.00 63.00 63.00 63.00 63.00 63.00
Buspirone 5% * 63.00 63.00 63.00 63.00 63.00 63.00 63.00 63.00
Zoloft 5% * 63.00 63.00 63.00 63.00 63.00 63.00 63.00 63.00
Aspirin 4% 10.66 10.66 10.66 10.66 10.66 10.66 10.66 10.66
Tylenol 4% 94.75 94.75 94.75 94.75 94.75 94.75 94.75 94.75
Advil 4% 68.26 68.26 68.26 68.26 68.26 68.26 68.26 68.26
PT 4% * 72.00 72.00 360.00 120.00
OT 4% * 48.00 48.00 240.00 80.00
Shower Transfer Bench 4% 18.57 18.57 18.57 18.57 18.57 18.57 18.57 18.57
Hand Held Shower 4% 4.57 4.57 4.57 4.57 4.57 4.57 4.57 4.57
Grab Bars 4% 39.14 39.14 39.14 39.14 39.14 39.14 39.14 39.14
Over the Toilet Commode 4% 25.57 25.57 25.57 25.57 25.57 25.57 25.57 25.57
Kitchen/Pers. Care/Adapt. Equip. 4% 30.00 30.00 30.00 30.00 30.00 30.00 30.00 30.00
Step Stool 4% 4.90 4.90 4.90 4.90
YMCA 4% M 348.00 348.00 348.00 348.00 348.00 348.00 348.00 348.00
Home Care 4% M 6,552.00 6,552.00 6,552.00 6,552.00 6,552.00 6,552.00 6,552.00 6,552.00
Handy Man 4% M 600.00 600.00 600.00 600.00 600.00
Mileage 4% M 1,031.95 1,031.95 1,031.95 1,031.95 1,031.95 1,031.95 1,031.95 1,031.95
Lost Earnings
Pain and Suffering
Past Unreimbursable Expenses
Annual Totals 9,493.57 9,285.57 9,405.57 9,285.57 9,280.67 8,800.67 9,280.67 8,880.67
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 ($12,713.29), lost earnings ($588,662.36), pain and suffering ($176,832.07), and past unreimbursable
expenses ($419.45): $778,627.17
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.
At respondent's discretion, items denoted with "M" payable in 12 monthly installments totaling the annual amount indicated.
