UNPUBLISHED
DECISION ON DAMAGES1
THOMAS L. GOWEN, Special Master.
On October 16, 2014, Erin Quackenbush-Baker ("petitioner") filed a claim for compensation pursuant to the National Vaccine Injury Compensation Program.2 Petitioner alleges that as a result of receiving a trivalent influenza ("flu") vaccination on November 20, 2013, she experienced a significant aggravation of a pre-existing but asymptomatic multiple sclerosis ("MS"). Petition (ECF No. 1). Respondent completed an initial review and elected to litigate the case. Petitioner and respondent each submitted several expert reports. Respondent also filed a Rule 4(c) report recommending against compensation. An entitlement hearing was held on February 2, 2017. On March 14, 2018, the undersigned ruled that petitioner had established entitlement to compensation based on a theory of causation in fact. Ruling on Entitlement (ECF No. 89).
On May 31, 2018, respondent filed a Proffer on an award of compensation, which indicates petitioner's agreement to compensation on the terms set forth therein. Proffer (ECF No. 95). The Proffer is attached hereto as Exhibit A.
Consistent with the terms of the Proffer, I hereby award the following compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a):
A. A lump sum payment of $1,093,123.68, representing compensation for life care expenses expected to be incurred during the first year after judgment ($49,025.00); lost earnings ($748,551.24); pain and suffering ($225,000.00); and past unreimbursable expenses ($70,547.44), in the form of a check payable to petitioner;
B. A lump sum payment of $7,343.13, representing compensation for satisfaction of the State of Arizona Medicaid Lien, payable jointly to petitioner and
The Rawlings Company
ATTN: Helene Bertaux
Reference No.: 86575544
P.O. Box. 2000
La Grange, KY 40031-2000
C. An amount sufficient to purchase an annuity contract as described in the Proffer, 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.3
IT IS SO ORDERED.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLP, and petitioner engaged Liz Kattman, M.S., Rehabilitation Counselor, and Helen Woodard, M.A., Rehabilitation Counselor to provide an estimation of Erin Quackenbush-Baker'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 14, 2018. 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 Erin Quackenbush-Baker, attached hereto as Tab A.1 Respondent proffers that Erin Quackenbush-Baker should be awarded all items of compensation set forth in the life care plan and illustrated by the chart attached at Tab A.2 Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, Erin Quackenbush-Baker has suffered past loss of earnings and will suffer a loss of earnings in the future. Therefore, respondent proffers that Erin Quackenbush-Baker 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 Erin Quackenbush-Baker's lost earnings is $748,551.24. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that Erin Quackenbush-Baker should be awarded $225,000.00 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 Erin Quackenbush-Baker'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 $70,547.44.
E. Medicaid Lien
Respondent proffers that Erin Quackenbush-Baker should be awarded funds to satisfy a State of Arizona lien in the amount of $7,343.13, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action that the State of Arizona may have against any individual as a result of any Medicaid payments the State of Arizona has made to or on behalf of Erin Quackenbush-Baker 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 November 20, 2013, under Title XIX of the Social Security Act.
II. Form of the Award
The parties recommend that the compensation provided to Erin Quackenbush-Baker 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:3
A. A lump sum payment of $1,093,123.68, representing compensation for life care expenses expected to be incurred during the first year after judgment ($49,025.00), lost earnings ($748,551.24), pain and suffering ($225,000.00), and past unreimbursable expenses ($70,547.44), in the form of a check payable to petitioner, Erin Quackenbush-Baker.
B. A lump sum payment of $7,343.13, representing compensation for satisfaction of the State of Arizona Medicaid lien, payable jointly to petitioner and
The Rawlings Company
Attn: Helene Bertaux
Reference No.: 86575544
P.O. Box 2000
La Grange, KY 40031-2000
Petitioner agrees to endorse this payment to The Rawlings Company.
C. An amount sufficient to purchase an annuity contract,4 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 company5 from which the annuity will be purchased.6 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, Erin Quackenbush-Baker, only so long as Erin Quackenbush-Baker 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 three percent (3%) 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: three percent (3%) 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, Erin Quackenbush-Baker, 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 Erin Quackenbush-Baker'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, Erin Quackenbush-Baker: $1,093,123.68
B. Medicaid lien: $7,343.13
C. An amount sufficient to purchase the annuity contract described
above in section II.C.
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/CHRISTINE M. BECER
CHRISTINE M. BECER
Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 616-3665
Dated: May 31, 2018
Appendix A: Items of Compensation for Erin Quackenbush-Baker
Lump Sum
Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. M Year 1 Years 2-14 Years 15-24 Years 25-Life
2018 2019-2031 2032-2041 2042-Life
Insurance 5% M 13,574.00 13,574.00 13,574.00
Medicare 5% M 11,510.00
Opthalmologist 5% 95.00 95.00 95.00
Vit D 3% 66.00 66.00 66.00 66.00
Neuropsych Evaluation 0% 3,938.00
Health Club Membership 3% M 546.00 504.00 504.00 504.00
Assistance 3% M 29,200.00 29,200.00 43,800.00 73,000.00
Case Management 3% M 1,356.00 1,356.00 1,356.00 1,356.00
Equipment 3% 250.00 33.00 33.00 33.00
Lost Earnings 748,551.24
Pain and Suffering 225,000.00
Past Unreimbursable Expenses 70,547.44
Medicaid Lien 7,343.13
Annual Totals 1,100,466.81 44,828.00 59,428.00 86,469.00
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 ($49,025.00), lost earnings ($748,551.24), pain and suffering ($225,000.00), and past unreimbursable
expenses ($70,547.44): $1,093,123.68.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and The Rawlings Company, as reimbursement of the State of Arizona's Medicaid lien: $7,343.13.
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 "M" payable in twelve monthly installments totaling the annual amount indicated.
