Davis v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 21-1474V

GREGGORY DAVIS, Chief Special Master Corcoran

Petitioner, Filed: October 13, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Michael Adly Baseluos, Baseluos Law Firm PLLC, San Antonia, TX, for Petitioner. Joseph Adam Lewis, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On June 15, 2021, Greggory Davis 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 he suffered Guillain-Barré Syndrome (“GBS”) which meets the Table definition for GBS or which, in the alternative, was caused-in-fact by the influenza (“flu”) vaccine he received on October 13, 2020. Petition at 1, ¶ 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On July 29, 2022, a ruling on entitlement was issued, finding Petitioner entitled to compensation for his GBS. On October 12, 2023, Respondent filed a proffer on award of compensation (“Proffer”). ECF No. 75. Respondent proffers that the following should be awarded:

A. All items of compensation set forth in Respondent’s life care plan illustrated by the chart entitled Appendix A and attached to the Proffer as Tab A;

B. The amount of $216,046.00, representing compensation for

Petitioner’s past and future lost wages; C. The amount of $250,000.00, representing compensation for

Petitioner’s actual and projected pain and suffering;3 and D. The amount of $30,700.00, representing compensation for

Petitioner’s past unreimbursable expenses.

Id. at 2-3. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, the following is awarded:

A. A lump sum in the amount of $584,311.07, representing compensation in the amount of $87,565.07 for life care expenses in the first year after judgment, compensation in the amount of $216,046.00 for actual and projected lost wages, compensation in the amount of $250,000.00 for actual pain and suffering,4 and compensation in the amount of $30,700.00 for actual unreimbursable expenses, in the form of a check payable to Petitioner, Greggory Davis; and

B. An amount sufficient to purchase the annuity contract described in Section II.B of the Proffer.

These amounts represent compensation for all damages that would be available under Section 15(a).

The Clerk of Court is directed to enter judgment in accordance with this decision.5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

)

GREGGORY DAVIS, )

)

Petitioner, )

) No. 21-1474V v. ) Chief Special Master Corcoran

) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, )

)

Respondent. )

)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On June 15, 2021, Greggory Davis (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that he suffered Guillain-Barré syndrome (“GBS”) resulting from an influenza (“flu”) vaccination he received on October 13, 2020. Petition at 1. On July 11, 2022, the Secretary of Health and Human Services (“respondent”) filed his Rule 4(c) Report conceding that petitioner has satisfied the criteria set forth in the Vaccine Injury Table (“Table”) and the Qualifications and Aids to Interpretation (“QAI”) for GBS following flu vaccination. 42 C.F.R. §§ 100.3(a)(XIV)(D), 100.3(c)(15), and that he is entitled to compensation. ECF No. 35. Accordingly, on July 29, 2022, the Chief Special Master issued a Ruling on Entitlement, finding that petitioner is entitled to vaccine compensation for GBS following the flu vaccine he received on October 13, 2020. ECF No. 36.

I. Items of Compensation

A. Life Care Items Respondent engaged life care planner Linda Curtis, RN, MS, CNLCP, CCM, and petitioner engaged Misty L. Coffman, RN, CLNC, MSCC, CNLCP, to provide an estimation of petitioner’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. All items of compensation identified in respondent’s life care plan are supported by the evidence, and are illustrated by the chart entitled Appendix A: Items of Compensation for Greggory Davis, attached hereto as Tab A. Respondent proffers that petitioner should be awarded all items of compensation set forth in respondent’s 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, Greggory Davis has suffered past loss of earnings and will suffer future loss of earnings as a result of his vaccine-related injury. Therefore, respondent proffers that petitioner 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 Greggory Davis’s past and future lost earnings is $216,046.00. Petitioner agrees.

C. Pain and Suffering Respondent proffers that petitioner should be awarded $250,000.00 in actual pain 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 $30,700.00. 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 Chief Special Master’s decision and the Court’s judgment award the following:1

A. A lump sum payment of $584,311.07, representing compensation for life care expenses expected to be incurred during the first year after judgment ($87,565.07), lost earnings ($216,046.00), pain and suffering ($250,000.00), and past unreimbursable expenses ($30,700.00), in the form of a check payable to petitioner, Greggory Davis.

B. An amount sufficient to purchase an annuity contract,2 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 company3 from which the annuity will be purchased.4 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, Greggory Davis, only so long as petitioner 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, Greggory Davis, 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 Greggory Davis’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, Greggory Davis: $584,311.07 B. An amount sufficient to purchase the annuity contract described above in section II.B.

Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division s//Joseph A. Lewis JOSEPH A. LEWIS Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 451-7495 Email: [email protected] Dated: October 11, 2023 Compensation Program System of Records, No. 09-15-0056.

Appendix A: Items of Compensation for Greggory Davis Page 1 of 1 Lump Sum Compensation Compensation Compensation Compensation Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Years 4-7 Year 8 Year 9 Years 10-Life

2023 2024 2025 2026-2029 2030 2031 2032-Life Medicare Part B Premium 5% M 1,978.80 1,978.80 1,978.80 1,978.80 Medicare Part B Deductible 5% 226.00 226.00 226.00 226.00 226.00 226.00 226.00 Medicare Supplement 5% M 6,432.00 6,432.00 6,432.00 6,432.00 3,474.00 3,474.00 3,474.00 Medicare Part D 5% M 796.60 796.60 796.60 796.60 796.60 796.60 796.60 Neurologist 5% * Occupational Therapy Evaluation 4% * Physical Therapy Evaluation 4% * Assisted Living Facility 4% M 77,120.00 72,120.00 72,120.00 72,120.00 72,120.00 72,120.00 72,120.00 Metal Shoehorn/Sock Remover Tool 4% 37.78 5.40 5.40 5.40 5.40 5.40 5.40 Button Hook with Zipper Pull 4% 9.99 1.43 1.43 1.43 1.43 1.43 1.43 Jar Opener 4% 19.95 Build Up Utensils 4% 35.98 6.00 6.00 6.00 6.00 6.00 6.00 Power Wheelchair 4% * Power Wheelchair Maintenance 4% * Wheelchair Side Bag 4% 19.99 4.00 4.00 4.00 4.00 4.00 4.00 Portable Ramp 4% 195.10 Power Lift Assist Recliner 4% * 349.99 35.00 35.00 35.00 35.00 35.00 35.00 Electric Hospital Bed 4% * Length Extension Pkg for Bed 4% * Pressure Relieving Mattress 4% 312.81 31.28 31.28 31.28 31.28 31.28 31.28 Walker 4% 30.08 Manual Wheelchair 4% * 21.23 21.23 Pressure Relieving Cushion 4% * Three in One Commode 4% * Crutches 4% 55.37 11.07 11.07 11.07 11.07 AFOs 4% * Eliquis 5% * Lost Earnings 216,046.00 Pain and Suffering 250,000.00 Past Unreimbursable Expenses 30,700.00 Annual Totals 584,311.07 81,636.51 81,691.88 81,647.58 76,710.78 76,732.01 76,732.01 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 ($87,565.07), lost earnings ($216,046.00), pain and suffering ($250,000.00), and past unreimbursable expenses ($30,700.00): $584,311.07.

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. APPENDIX A