UNPUBLISHED
DECISION ON PROFFER1
THOMAS L. GOWEN, Special Master.
On July 7, 2011, 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"), as mother and natural guardian of D.P. Petition (ECF No. 1). Petitioner alleged that as a result of receiving Diphtheria-Tetanus-acellular-Pertussis ("DTaP"), Measles-Mumps-Rubella ("MMR") and Pneumococcal Conjugate ("Prevnar") vaccines on August 4, 2008, D.P. had a severe anaphylactic reaction within two minutes of the vaccinations, which caused him to suffer a grand mal seizure. Petitioner further alleged that several hours later D.P. experienced more seizures and subsequently developed a seizure disorder and secondary developmental delay. Id.
On April 19, 2012, respondent filed his Rule 4(c) Report in which he contested entitlement to compensation in this case. Respondent's Report (ECF No. 24). An entitlement hearing was held on September 19, 2014, and a ruling on entitlement was issued on October 29, 2015, finding petitioner entitled to compensation. Ruling on Entitlement (ECF No. 91).
Counsel for the parties have worked extensively with their experts and have come to a resolution of damages. Their respective life care planners have agreed on future care issues and costs, lost future earnings, pain and suffering, past unreimbursable expenses, and the satisfaction of a State of Georgia WellCare Medicaid lien. On September 7, 2018, respondent filed a proffer on award of compensation ("Proffer") indicating petitioner should be awarded: (1) a lump sum payment of $1,250,898.64, representing compensation for lost earnings ($889,283.44), pain and suffering ($250,000.00), and life care expenses for Year One ($111,615.20); (2) a lump sum payment of $17,342.98, representing compensation for satisfaction of the State of Georgia WellCare Medicaid lien; and (3) an amount sufficient to purchase the annuity contract described in the Proffer. Proffer at 3-4 (ECF No. 187).
Respondent represented in the Proffer that petitioner agrees with the proffered award. I have reviewed the proffer and do award damages in accord with it. The Proffer is incorporated herein and made a part hereof as Appendix A. Based on the record as a whole, I find that petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner the following in compensation:3
A. A lump sum payment of $1,250,898.64, representing compensation for lost earnings ($889,283.44), pain and suffering ($250,000.00), and life care expenses for Year One ($111,615.20), in the form of a check payable to Michael T. Smith, Esq., as Conservator of D.P., for the benefit of D.P.
B. A lump sum payment of $17,342.98, representing compensation for satisfaction of the State of Georgia WellCare Medicaid lien, payable jointly to Michael T. Smith, Esq., as Conservator of D.P., and
Equian, LLC
P.O. Box 32140
Louisville, KY 40232-2140
Equian File No.: 744984-116716
Attn: Stephen Snabb
Mr. Michael T. Smith, Esq. agrees to endorse this payment to Equian, LLC.
C. An amount sufficient to purchase an annuity contract as described in Section II. C of the Proffer attached herein as Appendix A, that will provide payments for the life care items contained in the life care plan, as illustrated by the chart attached as Tab A to the Proffer, paid to the life insurance company from which the annuity will be purchased.
The Clerk of the Court is directed to enter judgment in accordance with this Decision.4
IT IS SO ORDERED.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
The respondent engaged life care planner, Laura E. Fox, MSN, RN, CDDN, CNLCP, and petitioner engaged Tresa Johnson, RN, BSN, CNLCP, to provide an estimation of D.P.'s future vaccine-injury related needs. For the purposes of this proffer, the term "vaccine related" is as described in the Special Master's Ruling on Entitlement, filed October 29, 2015. 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 D.P., attached hereto as Tab A.1 Respondent proffers that D.P. should be awarded all items of compensation set forth in the life care plan and illustrated by the chart attached at Tab A.2 Petitioner agrees.
B. Lost Future Earnings
The parties agree that based upon the evidence of record, D.P. will not be gainfully employed in the future. Therefore, respondent proffers that D.P. should be awarded lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B). Respondent proffers that the appropriate award for D.P.'s lost earnings is $889,283.44. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that D.P. 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
Petitioner represents that she has not incurred past unreimbursable expenses related to D.P.'s vaccine-related injury.
E. Medicaid Lien
Respondent proffers that D.P. should be awarded funds to satisfy a State of Georgia WellCare Medicaid lien in the amount of $17,342.98, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Georgia WellCare may have against any individual as a result of any Medicaid payments the State of Georgia WellCare has made to or on behalf of D.P. from the date of his eligibility for benefits through the date of judgment in this case as a result of his vaccine-related injury suffered on or about August 4, 2008, under Title XIX of the Social Security Act.
II. Form of the Award
The parties recommend that the compensation provided to D.P. 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:3
A. A lump sum payment of $1,250,898.64 representing compensation for lost earnings ($889,283.44), pain and suffering ($250,000.00), and life care expenses for Year One ($111,615.20), in the form of a check payable to petitioner as guardian/conservator of D.P., for the benefit of D.P. No payments shall be made until petitioner provides respondent with documentation establishing that she has been appointed as the guardian/conservator of D.P.'s estate. If petitioner is not authorized by a court of competent jurisdiction to serve as guardian/conservator of the estate of D.P., any such payment shall be made to the party or parties appointed by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of D.P. upon submission of written documentation of such appointment to the Secretary.
B. A lump sum payment of $17,342.98, representing compensation for satisfaction of the State of Georgia WellCare Medicaid lien, payable jointly to petitioner and
Equian, LLC
P.O. Box 32140
Louisville, KY 40232-2140
Equian File No.: 744984-116716
Attn: Stephen Snabb
Petitioner agrees to endorse this payment to Equian, LLC.
C. An amount sufficient to purchase the annuity contract,4 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 company5 from which the annuity will be purchased.6 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 as guardian of the estate of D.P., only so long as D.P. 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 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 D.P. 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 D.P.'s death.
3. Guardianship
No payments shall be made until petitioner provides respondent with documentation establishing that she has been appointed as the guardian/conservator of D.P.'s estate. If petitioner is not authorized by a court of competent jurisdiction to serve as guardian/conservator of the estate of D.P., any such payment shall be made to the party or parties appointed by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of D.P. upon submission of written documentation of such appointment to the Secretary.
III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioner as court-appointed
guardian/conservator of D.P.'s estate: $1,250,898.64
B. Medicaid Lien: $ 17,342.98
C. An amount sufficient to purchase the annuity contract described
above in section II. C.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D'ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
______________________________
ROBERT P. COLEMAN III
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) 305-0274
Dated: September 7, 2018
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Years 4-6 Years 7-8 Years 9-10 Year 11 Year 12
2018 2019 2020 2021-2023 2024-2025 2026-2027 2028 2029
Medical Ins 5% M 3,094.80 3,094.80 3,094.80 3,094.80 3,094.80 3,094.80 3,094.80 3,094.80
Anthem MOP 5% 6,350.00 3,456.00 3,456.00 3,456.00 3,456.00 3,456.00 3,456.00 3,456.00
Medicare Part B Premium 5% M
Medicare Part B Deductible 5%
Medigap G 5% M
Medicare Part D & Meds 5% M
Primary Care 5% *
Mileage: PCP 4% 2.70 2.70 2.70 2.70 2.70 2.70 2.70 2.70
Neurologist 5% * 280.00 280.00 280.00 280.00 280.00
Mileage: Neurologist 4% 92.88 92.88 92.88 92.88 92.88 92.88 92.88 92.88
EEG 5% *
MRI 5% *
Vision Therapy 4% *
Vision Therapy Follow Up 4% *
Psychiatrist 5% *
Mileage: Psychiatrist 4% 11.34 11.34 11.34 11.34 11.34 11.34 11.34 11.34
Dentist 5% * 300.00 300.00 300.00 300.00 300.00 300.00 300.00 300.00
Mileage: Dentist 4% 5.76 5.76 5.76 5.76 5.76 5.76 5.76 5.76
Night Guard 4% * 27.70 27.70 27.70 27.70 27.70 27.70 27.70 27.70
ER 5% *
Hospitalization 5% *
Orthopedic Surgeon for
Scoliosis 5% *
PT Eval 4% * 400.00 400.00 400.00 400.00 200.00 200.00 200.00 200.00
Mileage: PT Eval 4% 5.76 5.76 5.76 5.76 2.88 2.88 2.88 2.88
PT 4% * M 12 000.00 12,000.00 12,000.00 12,000.00 6,000.00
Mileage: PT 4% 276.48 276.48 276.48 276.48 138.24 138.24 138.24 138.24
PT Eval for Home Exercise Prgm 4% *
OT Eval 4% * 200.00 200.00 200.00 200.00 200.00
OT 4% * M 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00
ST Eval 4% * 200.00 200.00 200.00 200.00 200.00
ST 4% * M 4,680.00 4,680.00 3,120.00 3,120.00 3,120.00
Mileage: ST, OT 4% 207.36 207.36 207.36 207.36 138.24 138.24 138.24 138.24
Listening Therapy 4% 39.99
Lamictal 150 mg 5% *
Lamictal 50 mg 5% *
Diazepam 5% *
Klonopin 5% *
Fiber Gummies 4% 36.46 36.46 36.46 36.46 36.46 36.46 36.46 36.46
Pediasure 4% 454.88 454.88 454.88 454.88 454.88 454.88 454.88
Manual WC 4% *
Shower Chair 4% 64.45 12.89 12.89 12.89 12.89 12.89
Rifton Bike 4% *
Free Weights 4% 38.33 3.83 3.83 3.83 3.83 3.83 3.83 3.83
Ankle Weights 4% 36.49 3.65 3.65 3.65 3.65 3.65 3.65 3.65
Floor Mat 4% 279.00 279.00
Therabands 4% 36.65 12.22 12.22 12.22 12.22 12.22 12.22 12.22
Vestibular Swing 4% 943.64
Lycra Swing 4% 90.00
Glider 4% 118.95
Scooter Board 4% 139.95 139.95
ADL Items 4% 350.00 150.00 150.00 150.00 150.00 150.00 150.00 25.00
Social Skills Group 4% 450.00 225.00 225.00 225.00 225.00 225.00 225.00
Mileage: Social Skills Group 4% 241.92 120.96 120.96 120.96 120.96 120.96 120.96
Summer Camp 4% 300.00 300.00 300.00 300.00 300.00 300.00 300.00
Mileage: Summer Camp 4% 20.16 20.16 20.16 20.16 20.16 20.16 20.16
Psychologist 4% *
Mileage: Psychologist 4% 28.80 28.80 28.80
Case Mngt 4% M 4,080.00 4,080.00 3,060.00 3,060.00 2,040.00 2,040.00 2,040.00 2,040.00
Home Mods 4% 15 000.00
Bruno Seat 4% 8,500.00 1,214.28 1,214.28 1,214.28 1,214.28 1,214.28 1,214.28 1,214.28
Non Skilled Care School Days 4% M 19,980.00 19,980.00 19,980.00 19,980.00 19,980.00 19,980.00 19,980.00
Non Skilled Care Non School
Days 4% M 26,344.00 26,344.00 26,344.00 26,344.00 26,344.00 26,344.00 26,344.00
Adult Non Skilled Care 4% M 95,812.50
Lost Future Earnings 889,283.44
Pain and Suffering 250,000.00
Medicaid Lien 17,342.98
Annual Totals 1,268,241.62 84,215.02 81,699.47 81,647.91 74,188.87 58,388.87 58,807.82 106,631.37
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 the court-appointed
guardian(s)/conservators(s) of the estate of D.P. for the benefit of D.P., for lost future earnings ($889,283.44),
pain and suffering ($250,000.00), and Yr 1 life care expenses ($111,615.20): $1,250,898.64.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and Equian, LLC, as reimbursement of the Wellcare Medicaid lien: $17,342.98.
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 in column "G.R." above, 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 12 monthly installments at the discretion of respondent.
Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 13-15 Years 16-20 Year 21 Years 22-Life
2030-2032 2033-2037 2038 2039-Life
Medical Ins 5% M 3,094.80 3,094.80
Anthem MOP 5% 3,456.00 3,456.00
Medicare Part B Premium 5% M 1,608.00 1,608.00
Medicare Part B Deductible 5% 183.00 183.00
Medigap G 5% M 1,548.00 1,548.00
Medicare Part D & Meds 5% M 721.02 721.02
Primary Care 5% *
Mileage: PCP 4% 2.70 2.70 2.70 2.70
Neurologist 5% *
Mileage: Neurologist 4% 92.88 92.88 92.88 92.88
EEG 5% *
MRI 5% *
Vision Therapy 4% *
Vision Therapy Follow Up 4% *
Psychiatrist 5% *
Mileage: Psychiatrist 4% 11.34 11.34 11.34 11.34
Dentist 5% * 300.00 300.00 300.00 300.00
Mileage: Dentist 4% 5.76 5.76 5.76 5.76
Night Guard 4% * 27.70 138.50 138.50 138.50
ER 5% *
Hospitalization 5% *
Orthopedic Surgeon for Scoliosis5% *
PT Eval 4% * 200.00
Mileage: PT Eval 4% 2.88
PT 4% * M
Mileage: PT 4%
PT Eval for Home Exercise Prgm 4% *
OT Eval 4% *
OT 4% * M
ST Eval 4% *
ST 4% * M
Mileage: ST, OT 4%
Listening Therapy 4%
Lamictal 150 mg 5% *
Lamictal 50 mg 5% *
Diazepam 5% *
Klonopin 5% *
Fiber Gunnies 4% 36.46 36.46 36.46 36.46
Pediasure 4%
Manual WC 4% *
Shower Chair 4% 12.89 12.89 12.89 12.89
Rifton Bike 4% *
Free Weights 4% 3.83 3.83 3.83 3.83
Ankle Weights 4% 3.65 3.65 3.65 3.65
Floor Mat 4% 19.99 2.00
Therabands 4% 12.22 12.22 12.22 12.22
Vestibular Swing 4%
Lycra Swing 4%
Glider 4%
Scooter Board 4%
ADL Items 4% 25.00 25.00 25.00 25.00
Social Skills Group 4%
Mileage: Social Skills Group 4%
Summer Camp 4%
Mileage: Summer Camp 4%
Psychologist 4% *
Mileage: Psychologist 4%
Case Mngt 4% M 1,530.00 1,530.00 1,530.00 1,530.00
Home Mods 4%
Bruno Seat 4% 1,214.28 1,214.28 1,214.28 1,214.28
Non Skilled Care School Days 4% M
Non Skilled Care Non School
Days 4% M
Adult Non Skilled Care 4% M 95,812.50 95,812.50 95,812.50 95,812.50
Lost Future Earnings
Pain and Suffering
Medicaid Lien
Amoral Totals 105,844.89 105,752.81 103,282.02 103,264.03
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 the court-appointed
guardian(s)/conservators(s) of the estate of D.P. for the benefit of D.P., for lost future earnings ($889,283.44),
pain and suffering ($250,000.00), and Yr 1 life care expenses ($111,615.20): $1,250,898.64.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and Equian, LLC, as reimbursement of the Wellcare Medicaid lien: $17,342.98.
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 in column "G.R." above, 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 12 monthly installments at the discretion of respondent.
