DECISION ON DAMAGES1
NORA BETH DORSEY, Special Master.
On March 7, 2011, Sherry Salmins ("petitioner") filed a petition pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006). Petitioner alleged that as a result of receiving a Human Papillomavirus ("HPV") vaccine on January 27, 2009, she developed Guillain-Barré Syndrome. Amended Petition at Preamble. Further, petitioner alleged that she experienced residual effects of her injury for more than six months. Id. at ¶ 38.
On August 31, 2011, respondent filed a Rule 4(c) Report ["Respondent's Report"] arguing against compensation for petitioner under the terms of the Vaccine Act. Resp't Report at 1. The parties filed respective expert reports and an entitlement hearing was held before the undersigned on August 21, 2013. A Ruling on Entitlement, finding that petitioner is entitled to compensation based on an injury caused-in-fact by a covered vaccine, was issued on March 31, 2014. On April 3, 2014, a damages order was issued.
On June 11, 2015, respondent filed a Proffer on an award of compensation, indicating that petitioner has agreed to compensation in the amount of $1,405,466.39 lump sum, to be paid to petitioner only, for life care expenses expected to be incurred during the first year after judgment, lost earnings, pain and suffering, and past unreimburseable expenses. Petitioner has also agreed to receive an amount sufficient to purchase an annuity contract described in section II(B) of the Proffer, attached hereto as Appendix A. On June 15, 2015, petitioner's counsel was contacted by the undersigned's chambers, and counsel confirmed petitioner's agreement with the proposed compensation amounts. Accordingly, pursuant to the terms in the attached Proffer, the undersigned awards petitioner the following compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a):
1. A lump sum payment of $1,405,466.39 in the form of a check payable to petitioner, Sherry Salmins; and
2. An amount sufficient to purchase an annuity contract to provide the benefits described in section II, paragraph B of the Proffer, to be paid to a life insurance company meeting the criteria described in footnote 4.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of the parties' stipulation.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 planner Laura Fox, MSN, RN, CLCP, and petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of Sherry Salmins'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 March 31, 2014. 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 Sherry Salmins, attached hereto as Tab A.1 Respondent proffers that Sherry Salmins should be 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, Sherry Salmins has suffered a past loss of earnings and will continue to suffer a loss of earnings in the future. Therefore, respondent proffers that Sherry Salmins 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 Sherry Salmins's lost earnings is $1,198,320.52. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that Sherry Salmins should be awarded $180,000.00 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 Sherry Salmins's expenditure of past unreimbursable expenses related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $5,047.17. Petitioner agrees.
E. Medicaid Lien
Petitioner represents that there are no Medicaid liens outstanding against her.
II. Form of the Award
The parties recommend that the compensation provided to Sherry Salmins 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 $1,405,466.39, representing compensation for life care expenses expected to be incurred during the first year after judgment ($22,098.70), lost earnings ($1,198,320.52), pain and suffering ($180,000.00), and past unreimbursable expenses ($5,047.17), in the form of a check payable to petitioner, Sherry Salmins.
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 company4 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, Sherry Salmins, only so long as Sherry Salmins 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 she, Sherry Salmins, 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 Sherry Salmins'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, Sherry Salmins: $1,405,466.39
B. An amount sufficient to purchase the annuity contract described above in section II. B.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division VINCENT J. MATANOSKI
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
GLENN A. MACLEOD
Senior Trial Counsel
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 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Telephone: (202) 305-1586
Dated: June 11, 2015.
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Years 3-4 Year 5 Years 6-10 Year 11 Years 12-19 Year 20
2015 2016 2017-2018 2019 2020-2024 2025 2026-2033 2034
Medicare Part B Premium 5% M 1,258.80 1,258.80 1,258.80 1,258.80 1,258.80 1,258.80 1,258.80 1,258.80
Medicare Supplemental Ins 5% M
Neurologist 5% *
Pain Specialist 5% *
EMG 5% *
PT 4%
OT 4%
Massage Therapy 4% 750.00 750.00 750.00 750.00
Nutritionist 4% *
Grab Bars 4% 50.00 50.00
Cane 4%
Scooter 4% *
Scooter Battery 4% *
Scooter Battery Charger 4% *
YMCA 4% 740.00 740.00 740.00 740.00 740.00 740.00 740.00 740.00
Assistance in Home 4% M 17,500.00 17,500.00 17,500.00 17,500.00 17,500.00 17,500.00 17,500.00 17,500.00
Mileage: Neurologist 4% 10.44 10.44 10.44 10.44 10.44 10.44 10.44 10.44
Mileage: EMG 4% 10.44
Mileage: Nutritionist 4% 18.03 9.02
Mileage: Massage 4% 22.90 22.90 22.90 22.90
Mileage: YMCA 4% 106.08 106.08 106.08 106.08 106.08 106.08 106.08 106.08
Sun Truck Mobility 4% 4.35 4.35 4.35 4.35 4.35 4.35 4.35 4.35
Driver's Eval 0% 394.00
Hand Controls 4% 1,200.00 1,200.00
Hand Controls Maint 4% 44.10 44.10 44.10 44.10 44.10 44.10 44.10 44.10
Lost Future Earnings 1,198,320.52
Pain and Suffering 180,000.00
Past Unreimbursable Expenses 5,047.17
Annual Totals 1,405,466.39 20,445.69 20,436.67 20,447.11 19,663.77 20,863.77 19,663.77 19,713.77
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 21 Years 22-23 Year 24 Years 25-31 Year 32 Years 33-38 Years 39-40 Years 41-Life
2035 2036-2037 2038 2039-2045 2046 2047-2052 2053-2054 2055-Life
Medicare Part B Premium 5% M 1,258.80 1,258.80 1,258.80 1,258.80 1,258.80
Medicare Supplemental Ins 5% M 2,630.40 2,630.40 2,630.40
Neurologist 5% *
Pain Specialist 5% *
EMG 5% *
PT 4% 270.00 270.00
OT 4% 180.00 180.00
Massage Therapy 4%
Nutritionist 4% *
Grab Bars 4%
Cane 4% 19.00 2.71 2.71 2.71 2.71 2.71
Scooter 4% *
Scooter Battery 4% *
Scooter Battery Charger 4% *
YMCA 4% 740.00 740.00 740.00 740.00 740.00
Assistance in Home 4% M 17,500.00 17,500.00 17,500.00 17,500.00 17,500.00 17,500.00 17,500.00 17,500.00
Mileage: Neurologist 4% 10.44 10.44 10.44 10.44 10.44 10.44 10.44 10.44
Mileage: EMG 4%
Mileage: Nutritionist 4%
Mileage: Massage 4%
Mileage: YMCA 4% 106.08 106.08 106.08 106.08 106.08
Sun Truck Mobility 4% 4.35 4.35 4.35 4.35 4.35 4.35 4.35
Driver's Eval 0%
Hand Controls 4% 1,200.00
Hand Controls Maint 4% 44.10 44.10 44.10 44.10
Lost Future Earnings
Pain and Suffering
Past Unreimbursable Expenses
Annual Totals 20,863.77 19,663.77 19,682.77 19,666.48 19,622.38 20,147.90 20,597.90 20,593.55
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 ($22,098.70), lost earnings ($1,198,320.52), pain and suffering ($180,000.00), and past unreimbursable expenses ($5,047.17): $1,405,466.39.
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.
