Filed: Jul. 20, 2017
Latest Update: Jul. 20, 2017
Summary: UNPUBLISHED DECISION ON PROFFER 1 THOMAS L. GOWEN , Special Master . On September 30, 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 she suffered from Guillain-Barr Syndrome (GBS) as a result of an influenza vaccine administered on October 10, 2012. Petition at 1. On June 29, 2017, respondent filed a status report along with his Rule 4(c) Report in
Summary: UNPUBLISHED DECISION ON PROFFER 1 THOMAS L. GOWEN , Special Master . On September 30, 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 she suffered from Guillain-Barr Syndrome (GBS) as a result of an influenza vaccine administered on October 10, 2012. Petition at 1. On June 29, 2017, respondent filed a status report along with his Rule 4(c) Report in ..
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UNPUBLISHED
DECISION ON PROFFER1
THOMAS L. GOWEN, Special Master.
On September 30, 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 she suffered from Guillain-Barré Syndrome (GBS) as a result of an influenza vaccine administered on October 10, 2012. Petition at 1.
On June 29, 2017, respondent filed a status report along with his Rule 4(c) Report in which he states that he does not contest that petitioner is entitled to compensation in this case. Respondent's Status Report at 1. On July 13, 2017, a ruling on entitlement was issued, finding petitioner entitled to compensation for GBS. Counsel for the parties have worked diligently with their experts and have come to a resolution of damages. Their respective life care planners have agreed on future care issues and costs. The parties have submitted a projection of future lost wages, which has been reduced to present value and to which they have agreed. On July 14, 2017, respondent filed a proffer on award of compensation ("Proffer") indicating petitioner should be awarded $841,728.00. Proffer at 5. In the Proffer, respondent represented 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:
1) A lump sum payment of $841,728.00, representing compensation for lost past and future earnings ($618,595.00), pain and suffering ($173,968.00), and life care expenses for Year One ($49,165.00), in the form of a check payable to petitioner, Donna Scamby Powers.3
2) An amount sufficient to purchase an annuity contract as described in Section II. B of the Proffer attached herein as Appendix A, 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
Respondent submits the following recommendations regarding items of compensation to be awarded to petitioner under the Vaccine Act.
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Linda Curtis, RN, MSN, CCM, CNCLP, and petitioner engaged Roberta Hurley, Hurley and Econs Consulting, to provide an estimation of Donna Scamby Powers's ("petitioner") future vaccine-injury related needs. The parties' planners came to a joint consensus regarding appropriate items of care. For the purposes of this proffer, the term "vaccine-related" is as described in respondent's Rule 4(c) Report filed on June 29, 2017. All items of compensation identified in the agreed upon life care plan are supported by the evidence, and are illustrated by the chart entitled Tab A: Items of Compensation for Donna Scamby Powers, attached hereto as Tab A.1 Respondent proffers that petitioner should be awarded all items of compensation set forth in the agreed upon life care plan and illustrated by the chart attached at Tab A. Petitioner agrees.
B. Lost Future Earnings
The parties agree that based upon the evidence of record, Donna Scamby Powers has suffered a past loss of earnings and will continue to suffer a loss of earnings in the future.
Therefore, respondent proffers that petitioner should be awarded lost past and future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Respondent proffers that the appropriate award for petitioner's lost past and future earnings is $618,595.00. This amount reflects that the award for lost future earnings has been reduced to net present value. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $173,968.00 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). Petitioner agrees.
D. Past Un-reimbursable Expenses
Petitioner represents that she has not incurred any past un-reimbursable expenses related to her vaccine-related injury.
E. Medicaid Lien
Petitioner represents that there are no outstanding Medicaid liens against her.
II. Form of the Award
The parties recommend that the compensation provided to Donna Scamby Powers should be made through a combination of a one-time lump sum payment and future annuity payments as described below, and request that the Special Master's decision and the Court's judgment award the following for all compensation2 available under 42 U.S.C. § 300aa-15(a).
Respondent proffers and petitioner agrees that an award of compensation include the following elements:
A. A lump sum payment of $841,728.00, (representing compensation for lost past and future earnings ($618,595.00), pain and suffering ($173,968.00) and life care expenses for Year One ($49,165.00)), in the form of a check payable to petitioner; and
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, and 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 Donna Scamby Powers, only so long as Ms. Powers 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 structured settlement benefits" 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 six percent (6%) 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 six percent (6%) compounded annually from the date of judgment for medical items.
2. Life-contingent annuity
Petitioner will continue to receive the annuity payments from the Life Insurance Company only so long as petitioner is alive at the time that a particular payment is due. Petitioner's estate shall provide written notice to the Secretary of Health and Human Services and the Life Insurance Company within twenty (20) days of Ms. Powers' death.
3. Guardianship Issues
Petitioner is a legally competent adult, and aforementioned payments will be made directly to petitioner.
III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioner: $841,728.00
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
s/Linda S. Renzi
LINDA S. RENZI
Senior Trial Counsel
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-4133
DATE: July 14, 2017
Pet. Donna Scamby Powers
D.O.B.0/25/1953
DATE:07/06/17
TIME: 12:35 PM
SUMMARY OF LIFE CARE ITEMS — RESPONDENT'S LIFE CARE PLAN dated May 2, 2017
ITEM OF CARE Insurance Medical Ancillary Equipment Medications Home Transportation Home TOTALS TOTALS TOTALS OF
Care Services Services Modifications of Items of Items 6.0% & 4.0% ITEMS
with a 6.0% with a 4.0% AFTER APPLYING
Growth Rate Growth Rate THE GROWTH
GROWTH RATE 6.0% 6.0% 4.0% 4.0% 4.0% 4.0% 4.0% 4.0% RATE
AGE YEAR
64 2017 2,000.00 815.00 1,680.00 15,950.33 1,260.00 9,196.00 439.00 17,825.00 2,815 46,350 49,165
65 2018 0.00 863.90 291.20 867.78 1,310.40 9,497.28 45.66 0.00 864 12,012 12,876
66 2019 4,244.50 337.08 0.00 902.49 0.00 9,877.17 47.48 0.00 4,582 10,827 15,409
67 2020 4,499.17 357.30 0.00 938.59 0.00 10,272.26 49.38 0.00 4,856 11,260 16,117
68 2021 4,769.12 378.74 0.00 976.14 0.00 10,683.15 51.36 0.00 5,148 11,711 16,859
69 2022 5,055.27 401.47 0.00 1,015.18 0.00 11,110.47 53.41 0.00 5,457 12,179 17,636
70 2023 5,358.58 425.56 0.00 1,055.79 0.00 11,554.89 55.55 0.00 5,784 12,666 18,450
71 2024 5,680.10 451.09 0.00 1,098.02 0.00 12,017.09 57.77 0.00 6,131 13,173 19,304
72 2025 6,020.90 478.15 0.00 1,141.94 0.00 12,497.77 60.08 0.00 6,499 13,700 20,199
73 2026 6,382.16 506.84 0.00 1,187.62 0.00 12,997.68 62.48 0.00 6,889 14,248 21,137
74 2027 6,765.09 537.25 0.00 1,235.13 0.00 13,517.59 64.98 0.00 7,302 14,818 22,120
75 2028 7,170.99 569.49 0.00 1,284.53 0.00 14,058.29 67.58 0.00 7,740 15,410 23,151
76 2029 7,601.25 603.66 0.00 1,335.91 0.00 14,620.63 70.29 0.00 8,205 16,027 24,232
77 2030 8,057.33 639.88 0.00 1,389.35 0.00 15,205.45 73.10 0.00 8,697 16,668 25,365
78 2031 8,540.77 678.27 0.00 1,444.92 0.00 15,813.67 76.02 0.00 9,219 17,335 26,554
79 2032 9,053.21 718.97 0.00 1,502.72 0.00 16,446.22 79.06 0.00 9,772 18,028 27,800
80 2033 9,596.41 762.11 0.00 1,562.83 0.00 17,104.06 82.22 0.00 10,359 18,749 29,108
81 2034 10,172.19 807.83 0.00 1,625.34 0.00 17,788.23 85.51 0.00 10,980 19,499 30,479
82 2035 10,782.52 856.30 0.00 1,690.35 0.00 18,499.76 88.93 0.00 11,639 20,279 31,918
83 2036 11,429.47 907.68 0.00 1,757.97 0.00 19,239.75 92.49 0.00 12,337 21,090 33,427
84 2037 12,115.24 962.14 0.00 1,828.29 0.00 20,009.34 96.19 0.00 13,077 21,934 35,011
145,294 13,059 1,971 41,791 2,570 292,007 1,799 17,825 158,353 357,963 516,316
This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990
