Not to be published.
DECISION AWARDING DAMAGES1
BRIAN H. CORCORAN, Special Master.
On September 15, 2014, J.S. filed a petition seeking compensation under the National Vaccine Injury Compensation Program.2 (ECF No. 1). Petitioner alleged that he suffered from transverse myelitis as a result of the flu vaccine he received on September 23, 2011. Id. at 1. Petitioner later amended his claim to state that, in the alternative, receiving the flu vaccine caused a significant aggravation of an underlying neurological condition. (ECF No. 32). Respondent claimed that Petitioner was not entitled to compensation in his Rule 4(c) Report filed on October 30, 2013. (ECF No. 14).
For the next several years the parties litigated this matter. They submitted expert reports, pre-hearing briefs, and an entitlement hearing was held on September 28, 2017. (ECF Nos. 19, 24, 28, 31, 33, 37, and 38). Then, on April 9, 2018, I issued a Decision on Entitlement—holding that Petitioner had established his prima facie case, and directing the parties to begin the resolving the amount of damages. (ECF No. 55).
Thereafter the parties focused on resolving damages. Respondent has now filed a proffer proposing an award of compensation. (ECF No. 84) ("Proffer"). I have reviewed the file, and based upon that review, I conclude that Respondent's Proffer (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.
The Proffer proposes:
• A lump sum payment of $902,401.49, representing compensation for life care expenses expected to be incurred during the first year after judgment ($185,058.17); lost earnings ($452,407.53); pain and suffering ($250,000.00); and past unreimbursable expenses ($14,935.79), in the form of a check payable to Petitioner; and
• An amount sufficient to purchase an annuity contract, subject to the conditions described in Section II.B. of the Proffer and illustrated by the chart at Tab A of the Proffer. (ECF No. 84-1).
Proffer at 4. These amounts represent compensation for all elements of compensation under Vaccine Act Section 15(a) to which Petitioner is entitled.
I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court is directed to enter judgment herewith.3
IT IS SO ORDERED.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
In his Ruling on Entitlement issued on April 9, 2018, the Special Master found that a preponderance of the evidence supported [REDACTED/] ("petitioner's") claim that the influenza vaccine administered to him on September 23, 2011, caused his transverse myelitis. Respondent now proffers the following regarding the amount of compensation to be awarded.1
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLCP, and petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of [REDACTED/] 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. 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 [REDACTED/], attached hereto as Tab A.2 Respondent proffers that [REDACTED/] should be awarded all items of compensation set forth in the life care plan and illustrated by the chart attached at Tab A. Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, [REDACTED/] has suffered past loss of earnings and will suffer a loss of earnings in the future. Therefore, respondent proffers that [REDACTED/] 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 [REDACTED/] lost earnings is $452,407.53. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that [REDACTED/] should be awarded $250,000.00 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 his 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 $14,935.79. Petitioner agrees.
II. Form of the Award
The parties recommend that the compensation provided to petitioner 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 $902,401.49, representing compensation for life care expenses expected to be incurred during the first year after judgment ($185,058.17), lost earnings ($452,407.53), pain and suffering ($250,000.00), and past unreimbursable expenses ($14,935.79), in the form of a check payable to petitioner, [REDACTED/].
B. 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, [REDACTED/], only so long as [REDACTED/] 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 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, [REDACTED/], 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 [REDACTED/] 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, [REDACTED/]: $902,401.49
B. An amount sufficient to purchase the annuity contract described above in section II.B.
Respectfully submitted,
JOSEPH H. HUNT
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/ Mallori B. Openchowski
MALLORI B. OPENCHOWSKI
Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 305-0660
Dated: September 23, 2019
Appendix A: Items of Compensation for [REDACTED/]
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
IIEMS OF COMPENSATION G.R. * M Year 1 Year 2 Years 3-5 Year 6 Years 7-10 Year 11 Years 12-16 Years 17-18
2019 2020 2021-2023 2024 2025-2028 2029 2030-2034 2035-2036
BCBS Premium 5% M 8,510.76 8,510.76 8,510.76 8,510.76 8,510.76 8,510.76 8,510.76
BCBS Maximum out of Pocket 5% 7,350.00 7,350.00 7,350.00 7,350.00 7,350.00 7,350.00 7,350.00
Medicare Part A Premium 5% M 5,244.00
Medicare Part B Premium 5% M 1,626.00
Medigap 5% M 1,741.44
Medicare Part D 5% M 367.02
Primary Care Physician 5% *
Neurologist 5% *
Urologist 5% *
Gastroenterologist 5% *
Ophthalmologist 5% *
Orthopedic 5% *
PM&R 5% *
Wound Clinic 5% *
Emergency Room 5% *
Hospitalization 5% *
Lab 5% *
Urinalysis 5% *
MRI 5% *
Renal US 5% *
Cystoscopy 5% *
X-rays 5% *
Coumadin 5% *
Vitamin C 4% 11.50 11.50 11.50 11.50 11.50 11.50 11.50 11.50
Acetaminophen 4% 19.85 19.85 19.85 19.85 19.85 19.85 19.85 19.85
Physical Therapy 4% * 300.00
Occupational Therapy 4% * 35.00 35.00 35.00 35.00 35.00 35.00 35.00 150.00
Massage Therapy 4% 540.00 540.00 540.00 270.00 270.00
Counselor 4% *
Case Manager 4% 750.00 750.00 750.00 375.00 375.00 375.00 375.00 375.00
Nutritionist 4% *
Bilateral Foot Protectors 4% 562.00 562.00 562.00 562.00 562.00 562.00 562.00 562.00
Hand Bicycle 4% 99.95 16.66 16.66 16.66 16.66 16.66 16.66 16.66
Weights 4% 209.99 21.00 21.00 21.00 21.00 21.00 21.00 21.00
Emergency Response System 4% M 419.40 419.40 419.40 419.40 419.40 419.40 419.40 419.40
Electric Wheelchair 4% *
Roho Cushion 4% *
Standard Wheelchair 4% *
Transfer Board 4% *
Bedside Commode 4% *
Shower Chair 4% *
Electric Bed 4% *
Air Mattress 4% * 1,239.00 1,239.00 1,239.00
Standing Trapeze 4% 1,229.00 1,229.00 122.90 122.90
Portable Ramp 4% 469.95 31.33 31.33 31.33 31.33 31.33 31.33 31.33
Reacher 4% 18.99 3.80 3.80 3.80 3.80 3.80 3.80 3.80
Over the Bed Table 4% 235.00 39.17 39.17 39.17 39.17 39.17 39.17 39.17
Catheter Supplies 4% *
Colostomy Supples 4% *
Depends 4% M 593.13 593.13 593.13 593.13 593.13 593.13 593.13 593.13
Cornstarch 4% M 48.84 48.84 48.84 48.84 48.84 48.84 48.84 48.84
Gloves 4% M 140.53 140.53 140.53 140.53 140.53 140.53 140.53 140.53
Surgi-lube 4% M 208.00 208.00 208.00 208.00 208.00 208.00 208.00 208.00
Wipes 4% M 121.12 121.12 121.12 121.12 121.12 121.12 121.12 121.12
Tape 4% M 214.77 214.77 214.77 214.77 214.77 214.77 214.77 214.77
Betadine Swabs 4% M 423.40 423.40 423.40 423.40 423.40 423.40 423.40 423.40
Wound Care Supplies 4% *
Trash Bags 4% M 61.32 61.32 61.32 61.32 61.32 61.32 61.32 61.32
CHUX 4% M 126.07 126.07 126.07 126.07 126.07 126.07 126.07 126.07
YMCA 4% M 474.00 444.00 444.00 444.00 444.00 444.00 444.00 288.00
Home Care 4% M 76,650.00 76,650.00 76,650.00 76,650.00 84,315.00 84,315.00 84,315.00 114,975.00
Driver's Evaluation 4% 350.00 70.00 70.00 70.00 70.00 70.00 70.00 70.00
Modified Van 4% 60,000.00 48,000.00 4,800.00 4,800.00
Mileage: Primary Care Physician 4% 33.60 33.60 33.60 33.60 33.60 33.60 33.60 33.60
Mileage: Neurologist 4% 27.04 27.04 27.04 27.04 27.04 27.04 27.04 27.04
Mileage: Urologist 4% 28.16 28.16 28.16 28.16 28.16 28.16 28.16 28.16
Mileage: Gastroenterologist 4% 14.08 14.08 14.08 14.08 14.08 14.08 14.08 14.08
Mileage: Ophthalmologist 4% 14.08 14.08 14.08 14.08 14.08 14.08 14.08 14.08
Mileage: Orthopedic 4% 14.08 7.04 7.04 7.04 7.04 7.04 7.04 7.04
Mileage: PM&R 4% 14.08 4.69 4.69 4.69 4.69 4.69 4.69 4.69
Mileage: Wound Clinic 4% 27.80 27.80 27.80 27.80 27.80 27.80 27.80 27.80
Mileage: Emergency Room 4% 11.08 11.08 11.08 11.08 11.08 11.08 11.08 11.08
Mileage: Hospitalization 4% 11.08 2.22 2.22 2.22 2.22 2.22 2.22 2.22
Mileage: Physical Therapy 4% 39.84 39.84 19.92 19.92 19.92 19.92 19.92
Mileage: Occupational Therapy 4% 6.64 6.64 6.64 6.64 6.64 6.64 6.64
Mileage: Massage Therapy 4% 54.24 54.24 54.24 27.12 27.12
Mileage: Counselor 4% 84.48 16.90 16.90 16.90 16.90 16.90 16.90 16.90
Mileage: Nutritionist 4% 56.32 28.16
Mileage: YMCA 4% 510.00 510.00 510.00 510.00 510.00 510.00 510.00 510.00
Home Modification 0% 23,000.00
Lost Earnings 452,407.53
Pain and Suffering 250,000.00
Past Unreimbursable Expenses 14,935.79
Annual Totals 902,401.49 98,237.22 98,189.14 98,756.02 105,182.02 155,352.90 109,807.80 133,817.94
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 ($185,058.17), lost earnings ($452,407.53), pain and suffering ($250,000.00), and past unreimbursable
expenses ($14,935.79): $902,401.49.
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.
Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 19 Years 20-26 Year 27 Years 28-Life
2037 2038-2044 2045 2046-Life
BCBS Premium 5% M
BCBS Maximum out of Pocket 5%
Medicare Part A Premium 5% M 5,244.00 5,244.00 5,244.00 5,244.00
Medicare Part B Premium 5% M 1,626.00 1,626.00 1,626.00 1,626.00
Medigap 5% M 1,741.44 1,741.44 1,741.44 1,741.44
Medicare Part D 5% M 367.02 367.02 367.02 367.02
Primary Care Physician 5% *
Neurologist 5% *
Urologist 5% *
Gastroenterologist 5% *
Ophthalmologist 5% *
Orthopedic 5% *
PM&R 5% *
Wound Clinic 5% *
Emergency Room 5% *
Hospitalization 5% *
Lab 5% *
Urinalysis 5% *
MRI 5% *
Renal US 5% *
Cystoscopy 5% *
X-rays 5% *
Coumadin 5% *
Vitamin C 4% 11.50 11.50 11.50 11.50
Acetaminophen 4% 19.85 19.85 19.85 19.85
Physical Therapy 4% * 300.00 300.00 300.00 300.00
Occupational Therapy 4% * 150.00 150.00 150.00 150.00
Massage Therapy 4%
Counselor 4% *
Case Manager 4% 375.00 375.00 375.00 375.00
Nutritionist 4% *
Bilateral Foot Protectors 4% 562.00 562.00 562.00 562.00
Hand Bicycle 4% 16.66 16.66 16.66 16.66
Weights 4% 21.00 21.00 21.00 21.00
Emergency Response System 4% M 419.40 419.40 419.40 419.40
Electric Wheelchair 4% *
Roho Cushion 4% * 369.00 61.50 61.50 61.50
Standard Wheelchair 4% * 239.00 39.83 39.83 39.83
Transfer Board 4% * 70.00 11.67 11.67 11.67
Bedside Commode 4% * 185.00 30.83 30.83 30.83
Shower Chair 4% * 995.00 165.83 165.83 165.83
Electric Bed 4% *
Air Mattress 4% *
Standing Trapeze 4% 122.90 122.90 122.90 122.90
Portable Ramp 4% 31.33 31.33 31.33 31.33
Reacher 4% 3.80 3.80 3.80 3.80
Over the Bed Table 4% 39.17 39.17 39.17 39.17
Catheter Supplies 4% *
Colostomy Supples 4% *
Depends 4% M 593.13 593.13 593.13 593.13
Cornstarch 4% M 48.84 48.84 48.84 48.84
Gloves 4% M 140.53 140.53 140.53 140.53
Surgi-lube 4% M 208.00 208.00 208.00 208.00
Wipes 4% M 121.12 121.12 121.12 121.12
Tape 4% M 214.77 214.77 214.77 214.77
Betadine Swabs 4% M 423.40 423.40 423.40 423.40
Wound Care Supplies 4% *
Trash Bags 4% M 61.32 61.32 61.32 61.32
CHUX 4% M 126.07 126.07 126.07 126.07
YMCA 4% M 288.00 288.00 288.00
Home Care 4% M 114,975.00 114,975.00 114,975.00 114,975.00
Driver's Evaluation 4% 70.00 70.00
Modified Van 4% 4,800.00 4,800.00 4,800.00 4,800.00
Mileage: Primary Care Physician 4% 33.60 33.60 33.60 33.60
Mileage: Neurologist 4% 27.04 27.04 27.04 27.04
Mileage: Urologist 4% 28.16 28.16 28.16 28.16
Mileage: Gastroenterologist 4% 14.08 14.08 14.08 14.08
Mileage: Ophthalmologist 4% 14.08 14.08 14.08 14.08
Mileage: Orthopedic 4% 7.04 7.04 7.04 7.04
Mileage: PM&R 4% 4.69 4.69 4.69 4.69
Mileage: Wound Clinic 4% 27.80 27.80 27.80 27.80
Mileage: Emergency Room 4% 11.08 11.08 11.08 11.08
Mileage: Hospitalization 4% 2.22 2.22 2.22 2.22
Mileage: Physical Therapy 4%
Mileage: Occupational Therapy 4%
Mileage: Massage Therapy 4%
Mileage: Counselor 4% 16.90 16.90 16.90 16.90
Mileage: Nutritionist 4%
Mileage: YMCA 4% 510.00 510.00 510.00 510.00
Home Modification 0%
Lost Earnings
Pain and Suffering
Past Unreimbursable Expenses
Annual Totals 135,675.94 134,127.60 134,057.60 133,769.60
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 ($185,058.17), lost earnings ($452,407.53), pain and suffering ($250,000.00), and past unreimbursable
expenses ($14,935.79): $902,401.49.
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.
