CHRISTIAN J. MORAN, Special Master.
On December 31, 2003, the Moriartys filed a petition seeking compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-1 et seq., alleging that the measles-mumps-rubella (MMR) vaccination their daughter, Eilise, received on January 1, 2001, caused her to suffer epileptic encephalopathy. On February 10, 2017, Judge Wheeler of the Court of Federal Claims ruled that the Moriartys were entitled to compensation under the Vaccine Act. Judge Wheeler remanded the case to the undersigned to determine damages. 130 Fed. Cl. 573.
Calculating damages for this case presented a number of atypical challenges due to the complexity and age of the case. However, the parties and counsel dutifully worked towards a Proffer on Award of Compensation, which was filed on August 6, 2018. Based upon the record as a whole, the undersigned finds the Proffer reasonable and that the petitioner is entitled to an award as stated in the Proffer. Pursuant to the attached Proffer, attached as Appendix B, the court awards petitioner:
These amounts reflect all elements of compensation to which petitioner would be entitled under 42 U.S.C. §300aa-15(a). The Clerk's Office is instructed:
Any questions may be directed to my law clerk, Matthew Ginther, at (202) 357-6360.
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 the court appointed guardian(s) of the estate of Eilise Moriarty for the benefit of Eilise Moriarty, for Yr 1 life care expenses ($84,958.04), lost earnings ($1,032,153.27), and pain and suffering ($250,000.00): $1,367,111.31.
As soon as practicable after entry of judgment, respondent shall make the following payment to petitioners for past unreimbursable expenses: $200,000.00.
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.
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 the court appointed guardian(s) of the estate of Eilise Moriarty for the benefit of Eilise Moriarty, for Yr 1 life care expenses ($84,958.04), lost earnings ($1,032,153.27), and pain and suffering ($250,000.00): $1,367,111.31.
As soon as practicable after entry of judgment, respondent shall make the following payment to petitioners for past unreimbursable expenses: $200,000.00.
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.
Respondent engaged life care planner, Laura E. Fox, MSN, RN, CDDN, CNLCP, and petitioners engaged Nancy J. Bond, M.Ed., CCM, CLCP, to provide an estimation of Eilise Moriarty's future vaccine-injury related needs. For the purposes of this proffer, the term "vaccine related" is as described in Judge Wheeler's Review of Special Master's remand Decision Denying Relief, filed under seal February 10, 2017, and reissued February 27, 2017. 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 Eilise Moriarty, attached hereto as Tab A.
The parties agree that based upon the evidence of record, Eilise Moriarty has suffered a loss of earnings in the past and will not be gainfully employed in the future. Therefore, respondent proffers that Eilise Moriarty should be awarded lost earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B). Respondent proffers that the appropriate award for Eilise Moriarty's lost earnings is $1,032,153.27. Petitioners agree.
Respondent proffers that Eilise Moriarty should be awarded $250,000.00 in actual pain and suffering.
Evidence supplied by petitioners documents their expenditure of past unreimbursable expenses related to Eilise Moriarty's vaccine-related injury. Respondent proffers that petitioners should be awarded past unreimbursable expenses in the amount of $200,000.00. Petitioners agree.
The parties recommend that the compensation provided to Eilise Moriarty 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:
A. A lump sum payment of $1,367,111.31, representing compensation for lost earnings ($1,032,153.27), pain and suffering ($250,000.00), and life care expenses for Year One ($84,958.04), in the form of a check payable to petitioners as court-appointed guardian(s)/ conservator(s) of Eilise Moriarty, for the benefit of Eilise Moriarty. No payments shall be made until petitioners provide respondent with documentation establishing that they have been appointed as the guardian(s)/conservator(s) of Eilise Moriarty's estate. If petitioners are not authorized by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of Eilise Moriarty, 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 Eilise Moriarty upon submission of written documentation of such appointment to the Secretary.
B. A lump sum payment of $200,000.00, representing compensation for past unreimbursable expenses, in the form of a check payable to petitioners.
C. An amount sufficient to purchase the annuity contract,
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. Petitioners agree.
Petitioners will continue to receive the annuity payments from the Life Insurance Company only so long as Eilise Moriarty 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 Eilise Moriarty's death.
No payments shall be made until petitioners provide respondent with documentation establishing that they have been appointed as the guardian(s)/conservator(s) of Eilise Moriarty's estate. If petitioners are not authorized by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of Eilise Moriarty, 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 Eilise Moriarty upon submission of written documentation of such appointment to the Secretary.
