Tuckfield v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17-0156V Filed: March 25, 2019 UNPUBLISHED

EMILY TUCKFIELD,

Special Processing Unit (SPU); Petitioner, Damages Decision Based on Proffer;

v. Measles Mumps Rubella (MMR)

Vaccine; Varicella Vaccine; SECRETARY OF HEALTH Inactivated Polio (IPV); AND HUMAN SERVICES, Meningococcal Vaccine; Idiopathic

Thrombocytopenic Purpura (ITP) Respondent.

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.

Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On February 2, 2017, Emily Tuckfield (“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 as a result of the administration of varicella, measles-mumps-rubella (“MMR”), inactivated polio (“IPV”), and meningococcal vaccinations she received on August 19, 2015, she suffered from idiopathic thrombocytopenic purpura (“ITP”). Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On November 6, 2017, a ruling on entitlement was issued, finding petitioner entitled to compensation. On March 19, 2019, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $124,085.46, with $1,731.80 representing compensation for life care expenses expected to be incurred during the first year after judgment, $85,000.00 in actual and projected pain and suffering, and $37,353.66 for past unreimbursable expenses. Proffer at 4-5. In the Proffer, respondent represented that petitioner agrees with the proffered award. Id. 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 the following:

A. A lump sum payment of $86,731.80 (representing compensation for life care expenses expected to be incurred during the first year after judgment ($1,731.80), and pain and suffering ($85,000.00)) in the form of a check payable to petitioner, Emily Tuckfield;

B. A lump sum payment of $24,714.94 (for partial past unreimbursable expenses) in the form of a check payable jointly to petitioner, Emily Tuckfield, and her parents, Matthew Tuckfield and Christy Tuckfield;

C. A lump sum payment of $12,638.72 (for partial past unreimbursable expenses) in the form of a check payable to petitioner, Emily Tuckfield and Beaumont Health, and

D. An amount sufficient to purchase the annuity contract described section II.D, in the attached Proffer.

These amounts represent compensation for all damages that would be available under § 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

EMILY TUCKFIELD,

Petitioner, v. No. 17-156V

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 Laura Fox, MSN, BSN, CNLP, and petitioner engaged Maureen Clancy, RN, BSN, CLP, to provide an estimation of Emily Tuckfield’s future vaccine-injury related needs. For the purposes of this proffer, the term “vaccine related” is as described in the respondent’s Rule 4(c) Report, filed November 6, 2017. Based on respondent’s Rule 4(c) Report, the Chief Special Master found petitioner entitled to compensation on November 6, 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 Emily Tuckfield, attached hereto as Tab A. 1 Respondent proffers that Emily Tuckfield 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, Emily Tuckfield has not suffered a past loss of earnings and is not likely to suffer a loss of earnings in the future. Therefore, respondent proffers that Emily Tuckfield should not be awarded lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B). Petitioner agrees.

C. Pain and Suffering Respondent proffers that Emily Tuckfield should be awarded $85,000.00 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 the 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 $37,353.66. Petitioner agrees. II. Form of the Award

The parties recommend that the compensation provided to Emily Tuckfield 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 $86,731.80, representing compensation for life care expenses expected to be incurred during the first year after judgment ($1,731.80), and pain and suffering ($85,000.00), in the form of a check payable to petitioner, Emily Tuckfield.

B. A lump sum payment of $24,714.94, representing compensation for partial past unreimbursable expenses, in the form of a check payable jointly to petitioner, Emily Tuckfield, and her parents, Matthew Tuckfield and Christy Tuckfield.

Petitioner agrees to endorse this payment to Matthew Tuckfield and Christy Tuckfield.

C. A lump sum payment of $12,638.72, representing compensation for partial past unreimbursable expenses, in the form of a check payable jointly to petitioner, Emily Tuckfield, and Beaumont Health, and mailed to

Beaumont Health P.O. Box 554878

Detroit MI 48255-4878 Guarantor #: 3378907

Petitioner agrees to endorse this payment to Beaumont Health.

D. 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, Emily Tuckfield, only so long as Emily Tuckfield 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, Emily Tuckfield, 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 Emily Tuckfield’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, Emily Tuckfield: $86,731.80 B. Lump Sum paid jointly to petitioner, Emily Tuckfield, and her parents, Matthew Tuckfield and Christy Tuckfield: $24,714.94 C. Lump Sum paid jointly to petitioner, Emily Tuckfield, and

Beaumont Health: $12,638.72 D. An amount sufficient to purchase the annuity contract described above in section II.D.

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/Colleen C. Hartley COLLEEN C. HARTLEY 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) 616-3644

Dated: March 19, 2019

Appendix A: Items of Compensation for Emily Tuckfield Page 1 of 1

Lump Sum

Compensation Compensation Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-6 Years 7-21 Years 22-45 Years 46-Life

2019 2020-2024 2025-2039 2040-2063 2064-Life BCBS Deductible 5% 500.00 500.00 500.00 500.00 BCBS Rx Deductible 5% 250.00 250.00 250.00 250.00 Medicare Part B Deductible 5% 185.00 Hematologist 5% * 240.00 240.00 240.00 240.00 174.40 Opthalmologist 5% * 60.00 12.00 12.00 CBC, CMP 5% 336.80 336.80 336.80 336.80 Promacta 5% * M 300.00 300.00 3,000.00 3,000.00 4,553.80 Iron 4% 29.16 29.16 29.16 29.16 29.16 Mileage: Hematologist 4% 12.32 12.32 12.32 12.32 12.32 Mileage: Opthal-mologist 4% 3.52 0.70 0.70 Pain and Suffering 85,000.00 Partial Past Expenses (1) 24,714.94 Partial Past Expenses (2) 12,638.72 Annual Totals 124,085.46 1,680.98 4,380.98 4,368.28 4,954.68 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 ($1,731.80) and pain and suffering ($85,000.00): $86,731.80. (1) As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and her parents, Matthew Tuckfield and Christy Tuckfield for partial past unreimbursable expenses: $24,714.94. (2) As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and Beaumont Health for partial past unreimbursable expenses: $12,638.72. 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.