Judges: Nora Beth Dorsey
Filed: Aug. 21, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1397V Filed: April 12, 2018 UNPUBLISHED NOELLE C. JAMES, Guardian of the , Person and Estate of THEADA MARIE Special Processing Unit (SPU); GIBBINS, an Incapacitated Person, Damages Decision Based on Proffer; Influenza (Flu) Vaccine; Guillain- Petitioner, Barre Syndrome (GBS) v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Richard R. Johnson, Johnson and Johnson, PLLC, Yakima, WA, for petitioner. Debra A. Filtea
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1397V Filed: April 12, 2018 UNPUBLISHED NOELLE C. JAMES, Guardian of the , Person and Estate of THEADA MARIE Special Processing Unit (SPU); GIBBINS, an Incapacitated Person, Damages Decision Based on Proffer; Influenza (Flu) Vaccine; Guillain- Petitioner, Barre Syndrome (GBS) v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Richard R. Johnson, Johnson and Johnson, PLLC, Yakima, WA, for petitioner. Debra A. Filteau..
More
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1397V
Filed: April 12, 2018
UNPUBLISHED
NOELLE C. JAMES, Guardian of the ,
Person and Estate of THEADA MARIE Special Processing Unit (SPU);
GIBBINS, an Incapacitated Person, Damages Decision Based on Proffer;
Influenza (Flu) Vaccine; Guillain-
Petitioner, Barre Syndrome (GBS)
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Richard R. Johnson, Johnson and Johnson, PLLC, Yakima, WA, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On October 25, 2016, 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 Ms. Gibbins suffered Guillain-Barré Syndrome
(“GBS”) as a result of an influenza (“flu”) vaccine administered on October 24, 2013.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On September 18, 2017, a ruling on entitlement was issued, finding petitioner
entitled to compensation for MS. Gibbon’s GBS. On April 6, 2018, respondent filed a
proffer on award of compensation (“Proffer”).
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
In the Proffer, respondent represented that petitioner agrees with the proffered
award. Based on the record as a whole, the undersigned finds 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:
A. A lump sum payment of $257,267.88, representing compensation for
pain and suffering ($160,000.00), and life care expenses for Year One
($97,267.88), in the form of a check payable to petitioner, Noelle C.
James, as the guardian of Ms. Gibbins’ estate, for the benefit of Ms.
Gibbins.
B. A lump sum payment of $121,449.96, representing compensation for
satisfaction of the State of Washington Medicaid lien, payable jointly to
petitioner as the guardian of Ms. Gibbins’ estate and
State of Washington Health Care Authority
P.O. Box 45561
Olympia, WA 98504-5561
File No.: 224218
Petitioner agrees to endorse this payment to the State of Washington
Health Care Authority.; and
C. An amount sufficient to purchase the annuity contract described in
Proffer Section II.C.
D. A lump sum payment in the form of a check made payable to Noelle C.
James in the amount of $500.00, representing full reimbursement for
past unreimbursed medical expenses.
This amount represents compensation for all damages that would be available
under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
*************************************
NOELLE C. JAMES, Guardian for the *
Person and Estate of THEADA MARIE *
GIBBINS, an Incapacitated Person, *
*
Petitioner, * No. 16-1397V
* CHIEF SPECIAL MASTER DORSEY
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*************************************
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation1
The Chief Special Master issued a Ruling on Entitlement on September 18, 2017, and
concluded that Theada Marie Gibbins (Ms. Gibbins”) is entitled to compensation under 42
U.S.C. § 300aa(15)(a).2 For the purposes of this proffer, the term “vaccine-related” is as
described in the Chief Special Master’s Ruling on Entitlement. On March 9, 2018, respondent
filed a Life Care Plan from Linda Curtis, RN, MS, CCM, CNLCP (“Life Care Plan”), which
provides an estimation of Ms. Gibbins’ future vaccine-related medical needs. Petitioner, Noelle
C. James, and her attorney reviewed the Life Care Plan and agree that it accurately represents
Ms. Gibbins’ future vaccine-related medical expenses. Petitioner also agrees that the below-
1
Should Ms. Gibbins die prior to the entry of judgment, the parties reserve the right to
move the Court for appropriate relief. In particular, respondent would oppose any award for
future medical expenses, future lost earnings, and future pain and suffering.
2
On February 14, 2018, petitioner filed documentation establishing that she has been
appointed as the guardian of Ms. Gibbins’ person and estate under the State laws of Washington.
-1-
stated amounts represent compensation for all damages that would be available under 42 U.S.C.
§ 300aa(15)(a).
A. Life Care Items
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 Theada Gibbins,
attached hereto as Appendix A.3 Respondent proffers that Ms. Gibbins should be awarded all
items of compensation set forth in the Life Care Plan as illustrated by the chart attached as
Appendix A.4 Petitioner agrees.
B. Pain and Suffering
Respondent proffers that Ms. Gibbins should be awarded $160,000.00 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). Petitioner
agrees.
C. Medicaid Lien
Respondent proffers that Ms. Gibbins should be awarded funds to satisfy a State of
Washington Medicaid lien in the amount of $121,449.96, which represents full satisfaction of
any right of subrogation, assignment, claim, lien, or cause of action the State of Washington may
have against any individual as a result of any Medicaid payments the State of Washington has
The chart at Appendix A illustrates the annual benefits provided by the life care plan.
3
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.
4
The parties have no objection to the proffered award of damages. Assuming the Special
Master issues a damages decision in conformity with this proffer, the parties intend to waive
their right to seek review of such damages decision and the Chief Special Master’s September
18, 2017, decision finding Ms. Gibbins entitled to an award under the Vaccine Act.
-2-
made to or on behalf of Ms. Gibbins 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 October 24,
2013, under Title XIX of the Social Security Act. Petitioner agrees.
D. Respondent proffers that Noelle James should be awarded a lump sum payment of
$500.00, representing payment for past unreimbursed medical expenses. Petitioner agrees.
II. Form of the Award
The parties recommend that the compensation provided to Ms. Gibbins should be made
through a combination of lump sum payments and future annuity payments as described below,
and request that the Chief Special Master's decision and the Court's judgment award the
following:
A. A lump sum payment of $257,267.88, representing compensation for pain and
suffering ($160,000.00), and life care expenses for Year One ($97,267.88), in the form of a
check payable to petitioner as the guardian of Ms. Gibbins’ estate, for the benefit of Ms. Gibbins.
B. A lump sum payment of $121,449.96, representing compensation for satisfaction
of the State of Washington Medicaid lien, payable jointly to petitioner as the guardian of Ms.
Gibbins’ estate and
State of Washington Health Care Authority
P.O. Box 45561
Olympia, WA 98504-5561
File No.: 224218
Petitioner agrees to endorse this payment to the State of Washington Health Care Authority.
C. An amount sufficient to purchase the annuity contract,5 subject to the conditions
described below, that will provide payments for the life care items contained in the life care plan,
5
In respondent’s discretion, respondent may purchase one or more annuity contracts from
one or more life insurance companies.
-3-
as illustrated by the chart at Appendix A attached hereto, paid to the life insurance company6
from which the annuity will be purchased.7 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 Ms. Gibbins’ estate, only so long as Ms. Gibbins 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 Appendix 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 Appendix A that are to be paid through
6
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.
7
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.
-4-
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. Petitioner agrees.
2. Life-Contingent Annuity
Petitioner will continue to receive the annuity payments from the Life Insurance
Company only so long as Ms. Gibbins 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 Ms. Gibbins’ death.
3. Guardianship
Petitioner has been appointed as the guardian of Ms. Gibbins’ estate under the State law
of Washington. If petitioner becomes unable or is removed as the guardian of Ms. Gibbins’
estate, 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 Ms. Gibbins upon submission
of written documentation of such appointment to the Secretary.
D. A lump sum payment in the form of a check made payable to Noelle C. James in
the amount of $500.00, representing full reimbursement for past unreimbursed medical expenses.
III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioner as court-appointed
guardian of Ms. Gibbins’ estate: $ 257,267.88
B. Medicaid Lien: $ 121,449.96
C. An amount sufficient to purchase the annuity contract described
above in section II, C.
D. Lump sum paid to Noelle C. James $ 500.00
-5-
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/ Debra A. Filteau Begley
DEBRA A. FILTEAU BEGLEY
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Phone: (202) 616-4181
Dated: April 6, 2018
-6-
Appendix A: Items of compensation for Theada Gibbins
ITEMS OF Lump Sum
COMPENSATION G.R. Mode Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Years 10 &
Life
Medigap 6% M $ 2,685.00 $ 2,685.00 $ 2,685.00 $ 2,685.00 $ 2,685.00 $ 2,685.00 $ 2,685.00 $ 2,685.00 $ 2,685.00 $ 2,685.00
Medicare D 6% M $ 1,026.00 $ 1,026.00 $ 1,026.00 $ 1,026.00 $ 1,026.00 $ 1,026.00 $ 1,026.00 $ 1,026.00 $ 1.026.00 $ 1,026.00
Podiatrist 6% M $ 1,140.00 $ 1,140.00 $ 1,140.00 $ 1,140.00 $ 1,140.00 $ 1,140.00 $ 1,140.00 $ 1,140.00 $ 1,140.00 $ 1,140.00
Nursing Home 6% M $ 91,250.00 $ 91,250.00 $ 91,250.00 $ 91,250.00 $ 91,250.00 $ 91,250.00 $ 91,250.00 $ 91,250.00 $ 91,250.00 $ 91,250.00
Wheelchair
Cushion 4% - $ 298.00 $ 149.00 $ 149.00 $ 149.00 $ 149.00 $ 149.00 $ 149.00 $ 149.00 $ 149.00 $ 149.00
Cushion
Cover 4% - $ 53.00 $ 53.00 $ 53.00 $ 53.00 $ 53.00 $ 53.00 $ 53.00 $ 53.00 $ 53.00 $ 53.00
Lift Chair 4% - $ 369.00 $ 53.00 $ 53.00 $ 53.00 $ 53.00 $ 53.00 $ 53.00 $ 53.00 $ 53.00 $ 53.00
Compression
Stocking 4% - $ 147.00 $ 147.00 $ 147.00 $ 147.00 $ 147.00 $ 147.00 $ 147.00 $ 147.00 $ 147.00 $ 147.00
Miralax 4% - $ 108.00 $ 108.00 $ 108.00 $ 108.00 $ 108.00 $ 108.00 $ 108.00 $ 108.00 $ 108.00 $ 108.00
Laundry 4% - $ 192.00 $ 192.00 $ 192.00 $ 192.00 $ 192.00 $ 192.00 $ 192.00 $ 192.00 $ 192.00 $ 192.00
Annual Total $ 97,268.00 $ 96,803.00 $ 96,803.00 $ 96,803.00 $ 96,803.00 $ 96,803.00 $ 96,803.00 $ 96,803.00 $ 96,803.00 $ 96,803.00
Note: Compensation Year 1 consists of the 12 month period from the date of judgment. Compensation Year 2 consists of the 12 month period commencing on the first anniversary of the date of
judgment. Subsequent future compensation paid via an annuity follow the anniversary of the date of judgment.
G.R. Is the annual compounding growth rate of the listed benefit.
“M” refers to benefits that are paid in monthly installments.
Items of compensation and amounts are based on Life Care Plan Cost Projection Analysis completed by Linda Curtis RN, MS, CCM, CNLCP.
Gibbins/James v. HHS
No. 16-1397
Appendix A
