Judges: Nora Beth Dorsey
Filed: Oct. 17, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-689V Filed: July 23, 2018 UNPUBLISHED VICTOR WALKER, Special Processing Unit (SPU); Petitioner, Damages Decision Based on Proffer; v. Influenza (Flu) Vaccine; Guillain- Barre Syndrome (GBS) SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Howard Dale Mishkind, Mishkind Law Firm Co, L.P.A. Beachwood, OH, for petitioner. Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DA
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-689V Filed: July 23, 2018 UNPUBLISHED VICTOR WALKER, Special Processing Unit (SPU); Petitioner, Damages Decision Based on Proffer; v. Influenza (Flu) Vaccine; Guillain- Barre Syndrome (GBS) SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Howard Dale Mishkind, Mishkind Law Firm Co, L.P.A. Beachwood, OH, for petitioner. Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAM..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-689V
Filed: July 23, 2018
UNPUBLISHED
VICTOR WALKER,
Special Processing Unit (SPU);
Petitioner, Damages Decision Based on Proffer;
v. Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Howard Dale Mishkind, Mishkind Law Firm Co, L.P.A. Beachwood, OH, for petitioner.
Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On May 24, 2017, 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 he suffered Guillain-Barre Syndrome (“GBS”) as a result of
his March 21, 2016 influenza (“flu”) vaccination. Petition at 1. The case was assigned
to the Special Processing Unit of the Office of Special Masters.
On January 26, 2018, a ruling on entitlement was issued, finding petitioner
entitled to compensation for GBS. On July 23, 2018, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $$103,651.14
for lost earnings, $230,000.00 in actual and projected pain and suffering, and
$16,347.00 for past unreimbursable expenses, as well as future annuity payments to
provide for life care items listed in an attached chart. Proffer at 1-3. In the 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).
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 lump sum payment of $357,185.02, representing compensation for life
care expenses expected to be incurred during the first year after judgment
($7,186.88), lost earnings ($103,651.14), pain and suffering ($230,000.00),
and past unreimbursable expenses ($16,347.00), in the form of a check
payable to petitioner, Victor Walker; and
• An amount sufficient to purchase an annuity contract as described in
Section II(B) of the proffer.
This 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
VICTOR WALKER,
Petitioner,
v. No. 17-689V
Chief Special Master Dorsey
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
For the purposes of this proffer, the term “vaccine-related” is as described in the
respondent’s Rule 4(c) Report, filed January 26, 2018. All items of compensation identified as
life care items are supported by the evidence, and are illustrated by the chart entitled Appendix
A: Items of Compensation for Victor Walker, attached hereto as Tab A.1 Respondent proffers
that Victor Walker should be awarded all items of compensation set forth as life care items and
illustrated by the chart attached at Tab A. Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, Victor Walker has suffered a
past loss of earnings and will suffer a loss of earnings in the future. Therefore, respondent
proffers that Victor Walker should be awarded lost earnings as provided under the Vaccine Act,
1
The chart at Tab A illustrates the annual benefits payable for life care items. 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.
-1-
42 U.S.C. § 300aa-15(a)(3)(A). Respondent proffers that the appropriate award for Victor
Walker’s lost earnings is $103,651.14. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that Victor Walker should be awarded $230,000.00 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 Victor Walker’s expenditure of past
unreimbursable expenses related to his vaccine-related injury. Respondent proffers that
petitioner should be awarded past unreimbursable expenses in the amount of $16,347.00.
II. Form of the Award
The parties recommend that the compensation provided to Victor Walker 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:2
A. A lump sum payment of $357,185.02, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($7,186.88), lost earnings
($103,651.14), pain and suffering ($230,000.00), and past unreimbursable expenses
($16,347.00), in the form of a check payable to petitioner, Victor Walker.
2
Should petitioner die prior to 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-
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, 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, Victor Walker, only so long
as Victor Walker 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
3
In respondent’s discretion, respondent may purchase one or more annuity contracts
from one or more life insurance companies.
4
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.
-3-
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 he, Victor Walker, 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 Victor Walker’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, Victor Walker: $357,185.02
B. An amount sufficient to purchase the annuity contract described
above in section II.B.
5
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-
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
HEATHER L. PEARLMAN
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 l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 616-4133
Dated: July 23, 2018
-5-
Appendix A: Items of Compensation for Victor Walker Page 1 of 1
Lump Sum
Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-6 Years 7-Life
2018 2019-2023 2024-Life
Medicare Part B Deductible 5% 183.00
Neurontin 5% * 176.88 176.88 176.88
Primary Care 5% * 1,055.00 1,055.00 174.40
Supportive Walking and House Shoes 4% 165.00 165.00 165.00
Gym Membership 4% 972.00 972.00 972.00
Therapeutic Massage 4% M 4,368.00 4,368.00 4,368.00
OTC Meds & Supplies 4% M 120.00 120.00 120.00
Trekking Poles 4% 75.00 75.00 75.00
Supportive Boots 4% 140.00 140.00 140.00
Superfeet Cushioning Insoles 4% 80.00 80.00 80.00
Gel Foam Mattress Pad 4% 35.00 35.00 35.00
Lost Earnings 103,651.14
Pain and Suffering 230,000.00
Past Unreimbursable Expenses 16,347.00
Annual Totals 357,185.02 7,186.88 6,489.28
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 ($7,186.88), lost earnings ($103,651.14), pain and suffering ($230,000.00), and past unreimbursable
expenses ($16,347.00): $357,185.02
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.
