DECISION AWARDING DAMAGES1
NORA BETH DORSEY, Special Master.
On March 12, 2012, Tory Moody and Sarah Moody ("petitioners") filed a petition on behalf of a minor, VEM, pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006). The petition alleges that VEM received a measles, mumps, rubella ("MMR") and varicella vaccines on April 1, 2010, and suffered "febrile status epilepticus after immunizations with subsequent decline, and now with intractable epilepsy which was caused-in-fact by the MMR and Varicella vaccinations. ..." Petition at 2, 5.
Respondent has conceded that petitioners have satisfied all legal prerequisites for compensation under the Vaccine Act and recommends that compensation be awarded to petitioners. Respondent's Report at 2, 4-5, filed June 11, 2013.
Informed by respondent's concession that an award of damages is appropriate, the undersigned finds that petitioners are entitled to compensation under the Vaccine Act.
On May 29, 2014, respondent filed a Proffer on Award of Compensation ("Proffer"). In the Proffer, respondent represented that petitioners agree with the proffered award. Based on the record as a whole, the undersigned finds that petitioners are entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioners:
A. A lump sum payment of $864,746.00, in the form of a check payable to petitioners, as guardians/conservators of VEM's estate, for the benefit of VEM. No payments shall be made until petitioners provide the Secretary with documentation establishing the appointment of petitioners as the guardians/conservators of VEM's estate. If petitioners are not authorized by a court of competent jurisdiction to serve as guardians/conservators of the estate of VEM, 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 VEM upon submission of written documentation of such appointment to the Secretary.
B. A lump sum payment of $3,747.89, representing compensation for past unreimbursable expenses, payable to Tory Moody and Sarah Moody, petitioners.
C. A lump sum payment of $800,033.55, representing the trust seed which consists of the present year cost of five years of VEM's non-medical life care items ($547,877.82) for the years 2048 through 2052 plus Year One life care expenses ($252,155.73), payable to PEOPLESBANK, a Codorus Valley Company of York, Pennsylvania, to establish an irrevocable reversionary trust for the benefit of VEM, by and among the United States, as Grantor, and PEOPLESBANK, a Codorus Valley Company of York, Pennsylvania, as Trustee and petitioners, as Guardians/Conservators.
D. A lump sum payment of $108,846.13, representing compensation for satisfaction of the State of Indiana Medicaid lien, payable jointly to petitioners as guardians/conservators of the Estate of VEM and Indiana Medicaid:
Indiana Medicaid
HP Enterprise Services
Attn: TPL Casualty Dept.
P.O. Box 7262
Indianapolis, IN 46207
Petitioners agree to endorse this payment to Indiana Medicaid.
E. An amount sufficient to purchase an annuity contract, subject to the conditions described in the Proffer and the attachments to that Proffer.
Proffer ¶ II.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT herewith.3
IT IS SO ORDERED.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
The parties engaged life care planners to provide an estimation of VEM's future vaccine-injury related needs, and the parties' planners came to a joint consensus regarding appropriate items of care. All items of compensation identified in the joint life care plan, filed on May 22, 2014 as Respondent's Exhibit A, are supported by the evidence, and are illustrated by the chart entitled Items of Compensation for VEM, attached hereto as Tab A.1 Respondent proffers that VEM should be awarded all items of compensation set forth in the joint life care plan and illustrated by the chart attached at Tab A. Petitioners agree.
B. Lost Future Earnings
The parties agree that based upon the evidence, VEM will never be gainfully employed. Therefore, respondent proffers that VEM should be awarded full 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 VEM's lost future earnings is $614,746.00 at net present value. Petitioners agree.
C. Pain and Suffering
Respondent proffers that VEM should be awarded $250,000.00 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). Petitioners agree.
D. Past Unreimbursable Expenses
Evidence supplied by petitioner documents their expenditure of past unreimbursable expenses related to VEM's vaccine-related injury. Respondent proffers that petitioners should be awarded past unreimbursable expenses in the amount of $3,747.89. Petitioners agree.
E. Medicaid Lien
Respondent proffers that VEM's should be awarded funds to satisfy the State of Indiana Medicaid lien in the amount of $108,846.13, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Indiana may have against any individual as a result of any Medicaid payments the State of Indiana has made to or on behalf of VEM 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 April 1, 2010, under Title XIX of the Social Security Act.
F. Attorneys' Fees and Costs
This proffer does not address final attorneys' fees and costs. Petitioners are entitled to reasonable final attorneys' fees and costs, to be determined at a later date upon petitioners filing substantiating documentation.
II. Form of the Award
The parties recommend that the compensation provided to VEM 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:2
A. A lump sum payment of $864,746.00, representing compensation for lost future earnings ($614,746.00) and pain and suffering ($250,000.00), in the form of a check payable to petitioners, as guardians/conservators of VEM's estate, for the benefit of VEM. No payments shall be made until petitioners provide the Secretary with documentation establishing the appointment of petitioners as the guardians/conservators of VEM's estate. If petitioners are not authorized by a court of competent jurisdiction to serve as guardians/conservators of the estate of VEM, 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 VEM upon submission of written documentation of such appointment to the Secretary;
B. A lump sum payment of $3,747.89, representing compensation for past unreimbursable expenses, payable to Tory Moody and Sarah Moody, petitioners;
C. A lump sum payment of $800,033.55, representing the trust seed which consists of the present year cost of five years of VEM's non-medical life care items ($547,877.82) for the years 2048 through 2052 plus Year One life care expenses ($252,155.73), payable to PEOPLESBANK, a Codorus Valley Company of York, Pennsylvania, to establish an irrevocable reversionary trust for the benefit of VEM, by and among the United States, as Grantor, and PEOPLESBANK, a Codorus Valley Company of York, Pennsylvania, as Trustee and petitioners, as Guardians/Conservators.
D. A lump sum payment of $108,846.13, representing compensation for satisfaction of the State of Indiana Medicaid lien, payable jointly to petitioners as guardians/conservators of the Estate of VEM and Indiana Medicaid:
Indiana Medicaid
HP Enterprise Services
Attn: TPL Casualty Dept.
P.O. Box 7262
Indianapolis, IN 46207
Petitioners agree to endorse this payment to Indiana Medicaid.
E. 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 company4 from which the annuity will be purchased. 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 PEOPLESBANK a Codorus Valley Company of York, Pennsylvania, as trustees for VEM's Vaccine Trust, only so long as VEM is alive at the time a particular payment is due. At the Secretary's sole discretion, the periodic payments may be provided to the Trust 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 the guardian/conservator 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.
2. Life-contingent annuity
Petitioners will continue to receive the annuity payments from the Life Insurance Company only so long as VEM 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 VEM's death.
3. Guardianship Issues
No payments shall be made until petitioners provide respondent with documentation establishing that they have been appointed as the guardians/conservators of VEM's estate. If petitioners are not authorized by a court of competent jurisdiction to serve as guardians/conservators of the estate of VEM, 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 VEM upon submission of written documentation of such appointment to the Secretary.
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to petitioners as guardians/conservators of
VEM's estate: $864,746.00
B. Lump sum paid to petitioners: $ 3,747.89
C. PeoplesBank a Codorus Valley Company of York, Pennsylvania,
for the benefit of VEM Vaccine Trust $800,033.55
D. Reimbursement for Medicaid lien: $108,846.13
E. An amount sufficient to purchase the annuity contract described
above in section II. E.
F. Reasonable final attorneys' fees and litigation costs: TBD
Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
ALTHEA W. DAVIS
Senior Trial Counsel
Torts Branch, Civil Division
