D.S. v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: March 10, 2017 Reissued in Redacted Form: April 4, 2017

* * * * * * * * * * * * * * * * * * *

* D.S., * PUBLISHED

*

Petitioner, * No. 10-77V

v. *

* Chief Special Master Dorsey *

SECRETARY OF HEALTH * Damages Award; Proffer; Human AND HUMAN SERVICES, * Papillomavirus (“HPV”) Vaccine;

* Guillain-Barré Syndrome (“GBS”); Respondent. * Miller-Fisher Variant;

* Significant Aggravation. * * * * * * * * * * * * * * * * * * * Lisa Annette Roquemore, Law Office of Lisa A. Roquemore, Rancho Santa Margarita, CA for petitioner.

Darryl R. Wishard, U.S. Department of Justice, Washington, D.C., for respondent.

DECISION AWARDING DAMAGES1 On February 12, 2010, D.S. (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program (“the Program”).2 Petition (ECF No. 1). Petitioner alleged that as a result of receiving the first dose of the human papillomavirus (“HPV”) vaccine (“Gardasil”) on or about February 21, 2007, she suffered from the Miller-Fisher variant of Guillain-Barré Syndrome (“GBS”) in April 2007. Petition at 2.

On May 19, 2015, the undersigned issued a decision finding that petitioner was entitled to compensation. Ruling on Entitlement (ECF No. 135). On March 10, 2017, respondent filed a Proffer on Award of Compensation (“Proffer”). Proffer by HHS (ECF No. 11), attached hereto as Appendix A. 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: (1) A lump sum payment of $1,622,715.00, representing compensation for life care expenses expected to be incurred during the first year after judgment ($165,398.00); lost earnings ($1,100,00.00); pain and suffering ($250,000.00); and past un-reimbursable expenses ($107,317.00), in the form of a check made payable to petitioner, D.S.; and

(2) An amount sufficient to purchase the annuity contract described in section II.B. of the Proffer.

Proffer at 2, 4.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT herewith.3

IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS D.S.,

Petitioner, v. No. 10-77V

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 Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLP, and petitioner engaged Liz Holakiewicz, RN, BSN, CCM, CNLCP, to provide an estimation of D.S.’s future vaccine-injury related needs. For the purposes of this proffer, the term “vaccine related” is as described in the Chief Special Master’s Ruling on Entitlement, filed May 19, 2015. 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 D.S., attached hereto as Tab A. 1 Respondent proffers that D.S. 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, D.S. has suffered past loss of earnings and will suffer a loss of earnings in the future. Therefore, respondent proffers that D.S. 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 D.S.’s lost earnings is $1,100,000.00. Petitioner agrees.

C. Pain and Suffering Respondent proffers that D.S. should be awarded $250,000.00 in actual pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

D. Past Unreimbursable Expenses Evidence supplied by petitioner documents her 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 $107,317.00. Petitioner agrees.

E. Medicaid Lien Petitioner represents that there are no Medicaid liens outstanding against her. II. Form of the Award

The parties recommend that the compensation provided to D.S. 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 $1,622,715.00, representing compensation for life care expenses expected to be incurred during the first year after judgment ($165,398.00), lost earnings ($1,100,000.00), pain and suffering ($250,000.00), and past unreimbursable expenses ($107,317.00), in the form of a check payable to petitioner, D.S.

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 contained in the life care plan, as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company 4 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, D.S., only so long as D.S. 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 she, D.S., 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 D.S.’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, D.S.: $1,622,715.00 B. An amount sufficient to purchase the annuity contract described above in section II.B.

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/Darryl R. Wishard DARRYL R. WISHARD Senior 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) 616-4357

Dated: March 10, 2017 Medicare Part B Premium 5% M 4,179.60 4,179.60 4,179.60 4,179.60 Medicare Part B Deductible 5% * Medigap 5% M 6,894.36 6,894.36 6,894.36 6,894.36 2,421.12 Medicare Part D 5% M 10,686.29 10,686.29 10,686.29 10,686.29 10,686.29 Neurology 5% * Opthalmologist 5% * Physical Medicine & Rehabilitation 5% * ENT 5% * Audiology Testing 5% *

4% * Dental 5% 202.00 202.00 202.00 202.00 202.00 Orthodontic 5% 2,895.00

5% * 5% 30,000.00 4% 675.00 4% 3,337.50 1,668.75 1,668.75 1,668.75 1,668.75 Diagnostic Testing 4% *

5% * 5% * 5% * 5% * 4% 117.60 117.60 117.60 117.60 117.60 4% 435.54 435.54 435.54 435.54 435.54 5% * 5% * 5% * 5% M 641.58 641.58 641.58 641.58 641.58 5% * 5% * 5% M 315.24 315.24 315.24 315.24 315.24 5% *

Tab A

5% * 5% *

Anti-Inflammatory Anti-oxidant Supp 4% 400.00 400.00 400.00 400.00 400.00 Case Mngt 4% M 1,200.00 1,200.00 1,200.00 1,200.00 1,200.00

4% M 52,560.00 52,560.00 52,560.00 52,560.00 52,560.00 Housekeeping 4% M 4,464.00 4,464.00 4,464.00 4,464.00 4,464.00

4% M 899.40 899.40 899.40 899.40 899.40 Palliative Care:

4% M 2,241.02 2,241.02 2,241.02 2,241.02 2,241.02 Home Mods 0% 38,134.12

4% 250.00 250.00 250.00 250.00 250.00 4% 370.00 74.00 74.00 74.00 74.00

Computer Software 0% 1,120.00

0% 744.00

Hot Packs 4% 129.95 43.32 43.32 43.32 43.32

4% 123.88 123.88 123.88 123.88 123.88 Tissues 4% 301.49 301.49 301.49 301.49 301.49 Eye Drops 4% 236.88 236.88 236.88 236.88 236.88 Magnifiers & Chair Mount 4% 101.00 4.40 4.40 4.40 4.40

4% 30.00 10.00 10.00 10.00 10.00 Medical Alert Bracelet 4% 40.00 8.00 8.00 8.00 8.00 Electric Toothbrush 4% 59.55 11.91 11.91 11.91 11.91 Waterpik 4% 74.10 14.82 14.82 14.82 14.82

4% * 4% 28.50 5.70 5.70 5.70 5.70 4% 59.96 59.96 59.96 59.96 59.96

Sleep Mask 4% 19.98 19.98 19.98 19.98 19.98 Shower Chair 4% 285.10 57.02 57.02 57.02 57.02

4% 39.98 39.98 39.98 39.98 39.98 Swim Goggles 4% 17.95 17.95 17.95 17.95 17.95 Hair Dryer Stand 4% 20.13 2.88 2.88 2.88 2.88 Gel Shoe Inserts 4% 49.90 49.90 49.90 49.90 49.90 OT Eval 4% 250.00 50.00 50.00 50.00 50.00 Mileage: Dr. 4% 44.94 44.94 44.94 44.94 44.94 Mileage: Dr. 4% 32.10 32.10 32.10 32.10 32.10 Mileage: ENT 4% 96.30 96.30 96.30 96.30 96.30 Mileage: 4% 417.30 417.30 417.30 417.30 417.30 Mileage: 4% 7.49 7.49 7.49 7.49 7.49 Mileage: Ophthalmology 4% 10.91 10.91 10.91 10.91 10.91 Mileage: 4% 158.36 158.36 158.36 158.36 158.36 Lost Earnings 1,100,000.00 Pain and Suffering 250,000.00 Past Unreimbursable Expenses 107,317.00 Annual Totals 1,622,715.00 89,054.85 89,054.85 89,054.85 80,402.01 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 ($165,398.00), lost earnings ($1,100,000.00), pain and suffering ($250,000.00), and past unreimbursable expenses ($107,317.00): $1,622,715.00.

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.