DECISION AWARDING DAMAGES: CHILD DOE/77, a minor, by [DELETE] Parents and Natural Guardians, JANE DOE/77 AND JOHN DOE/77, v. SECRETARY OF HEALTH AND HUMAN SERVICES
MMR Vaccine; Thimerosal-Containing Vaccines; Autism Spectrum Disorder; Finding of Entitlement; Damages Decision Based On Profferby the United States Court of Federal Claims, OFFICE OF SPECIAL MASTERS
July 20, 2010
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[DELETE]
[DELETE]
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(E-Filed: July 21, 2010; Re-Issued: July 22,2010;
Re-Issued for Redaction: July 23, 2010; Re-issued for Redaction: August 27, 2010)
CHILD DOE/77, a minor,
by [DELETE] Parents and Natural Guardians,
JANE DOE/77 AND JOHN DOE/77,
Petitioners,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
MMR Vaccine; Thimerosal-Containing Vaccines; Autism Spectrum Disorder; Finding of Entitlement; Damages Decision Based On Proffer
[DELETE]
Special Master Campbell-Smith
TO PUBLISH
Clifford J. Shoemaker, Vienna, VA, for petitioners
Catharine E. Reeves, Washington, DC, for respondent
CAMPBELL-SMITH, Special Master
DECISION AWARDING DAMAGES [1]On October 25,2002, petitioners, John and Jane 00e177, filed a petition on behalf of their minor child seeking compensation under the National Vaccine Injury Compensation Program ("the Vaccine Program") for a vaccine-related injury. [2]
Respondent has conceded that petitioners are entitled to compensation due to the significant aggravation of Child Doc/77's pre-existing mitochondrial disorder based on an MMR vaccine Table presumptive injury of encephalopathy, which eventually manifested as a chronic encephalopathy with features of autism spectrum disorder and a complex partial seizure disorder as a sequela.
Based on the persuasive factors supporting petitioner's vaccine claim and respondent's election not to challenge petitioner's claim, the undersigned finds that petitioner is entitled to compensation under the Vaccine Program. Accordingly, a determination of damages is appropriate.
On July 20, 2010, respondent filed a Proffer on Award of Compensation (Proffer). On July 20, 2010, petitioners orally accepted respondent's Proffer. Based on the record as a whole, the undersigned finds that petitioners are entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, the court awards petitioners:
1. A lump sum payment of $1,507,284.67, representing compensation for life care expenses expected to be incurred during the first year after judgment ($624,713.32), lost future earnings ($674,410.67) and pain and suffering ($208,160.68), in the form of a check payable to petitioners, as the court appointed guardian(s)/conservator(s) of the estate of Child Doe/77, for the benefit of Child Doe/77. No payments shall be made until petitioners provide respondent with documentation establishing that they have been appointed as the guardian(s)/conservator(s) of Child Doe/77's estate;
2. A lump sum payment of $140,109.67, representing compensation for past unreimbursable expenses, payable to John and Jane Doe/77, petitioners;
3. A lump sum payment of $7,821.81, representing compensation for satisfaction of the State of [redacted) Medicaid lien, payable jointly to petitioner and
[redacted) Department of Community Health Subrogation Unit
[redacted)
[redacted)
[redacted)
Attn: [redacted)
4. An amount sufficient to purchase an annuity contract(s), subject to the conditions described in paragraph II. D. of the attached Proffer, paid to the life insurance company(ies) from which the annuity(ies) will be purchased.
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.
Patricia E. Campbell-Smith
Special Master
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
[DELETE], a minor, by her Parents and Natural Guardians,
Petitioners,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
No. [DELETE] V
Special Master
Campbell-Smith
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care ItemsThe respondent engaged life care planners Suzanne Labansky, MSN, CRRN, CCM, CLCP, MSC, and Ginger Walton, MSN, FNP, CNCLP, and petitioners engaged life care planner Terry Kennedy Arnold, RN, CDMS, CRRN, CLCP, CNLCP, to provide an estimation of [DELETE] [DELETE] future vaccine injury-related needs. 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 [DELETE], attached hereto as Tab A. [1]Respondent proffers that [DELETE] should be awarded all items of compensation set forth in the life care plan and illustrated by the chart attached at Tab A. Petitioners agree.
B. Lost Future EarningsThe parties agree that based upon the evidence of record, [DELETE] will never be gainfully employed. Therefore, respondent proffers that [DELETE] should be awarded full lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B). Respondent proffers that the appropriate award for [DELETE] lost future earnings is $674,410.67. Petitioners agree.
C. Pain and SufferingRespondent proffers that [DELETE] should be awarded $208,160.68 in actual and projected pain and suffering. This amount reflects that the award for projected pain and suffering has been reduced to net present value. Sec 42 U.S.C. § 300aa-15(a)(4). Petitioners agree.
D. Past Unreimbursable ExpensesEvidence supplied by petitioners documents their expenditure of past unreimbursable expenses related to [DELETE] vaccine-related injury. Respondent proffers that petitioners should be awarded past unreimbursable expenses in the amount of $140,109.67. Petitioners agree.
E. Medicaid LienRespondent proffers that [DELETE] should be awarded funds to satisfy the State of [DELETE] Medicaid lien in the amount of $7,821.81, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of [DELETE] may have against any individual as a result of any Medicaid payments the State of [DELETE] has made to or on behalf of [DELETE] from the date of her eligibility for benefits through the date of judgment in this case as a result of her vaccine-related injury suffered on or about July 19, 2000, under Title XIX of the Social Security Act.
II. Form of the AwardThe parties recommend that the compensation provided to [DELETE] 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 $1,507,284.67, representing compensation for life care expenses expected to be incurred during the first year after judgment ($624,713.32), lost future earnings ($674,410.67) and pain and suffering ($208,160.68), in the form of a check payable to petitioners, as the court-appointed guardian(s)/conservator(s) of the estate of [DELETE], for the benefit of [DELETE]. No payments shall be made until petitioners provide respondent with documentation establishing that they have been appointed as the guardian(s)/conservator(s) of [DELETE] estate;
B. A lump sum payment of $140,109.67, representing compensation for past unreimbursable expenses, payable to [DELETE], petitioners;
C. A lump sum payment of $7,821.81, representing compensation for satisfaction of the State of [DELETE] Medicaid lien, payable jointly to petitioners and
[DELETE] Department of Community Health
Subrogation Unit
[DELETE]
[DELETE]
[DELETE]
[DELETE]
Petitioners agree to endorse this payment to the State of [DELETE]
D. An amount sufficient to purchase an annuity contract(s), 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(ies) [2] from which the annuity(ies) will be purchased. 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(ies), which annuity(ies) shall make payments directly to petitioners as guardian(s)/conservator(s) of the estate of [DELETE], for the benefit of [DELETE] [DELETE], only so long as [DELETE] is alive at the time a particular payment is due. At the Secretary's sole discretion, the periodic payments may be provided to petitioners 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 petitioners and do not require that the payment be made in one annual installment.
1. Growth RateRespondent proffers that a four percent (4%) growth rate should be applied to all nonmedical 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.
2. Life-contingent annuity(ies)Petitioners will continue to receive the annuity payments from the Life Insurance Company(ies) only so long as [DELETE] is alive at the time that a particular payment is due. Petitioners shall provide written notice to the Secretary of Health and Human Services and the Life Insurance Company(ies) within twenty (20) days of [DELETE] death.
3. GuardianshipNo payments under section II. A. shall be made until petitioners provide the Secretary with documentation establishing their appointment as the guardian(s)/conservator(s) of [DELETE] [DELETE] estate. If petitioners are not authorized by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of [DELETE] at the time a payment is to be made, any such payment shall be paid to the party or parties appointed by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of [DELETE] upon submission of written documentation of such appointment to the Secretary.
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to petitioners, as guardian(s)/conservator(s) of the estate of [DELETE] for Yr 1 life care expenses, lost future earnings, and pain and suffering: $1,507,284.67
B. A lump sum paid to petitioners: $140,109.67
C. Reimbursement of the Medicaid lien: $7,821.81
D. An amount sufficient to purchase the annuity contract(s) described above in section II. D.
Respectfully submitted,
TONY WEST
Assistant Attorney General
TIMOTHY P. GARREN
Director
Torts Branch, Civil Division
MARK W. ROGERS
Deputy Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Assistant Director
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Telephone: (202) 307-1400
Dated: July 20, 2010
TAB A
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 nil 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 gllardian(s)/custodian(s) of the estate of [DELETE], for the benefit of [DELETE], for lost future earnings ($674.41O.67), pain and suffering ($208,160.68), and Yr 1 life care expenses ($624,713.32): $1,507,284.67.
As soon as practicable after entry of judgment, respondent shall make the following payment to petitioners, [DELETE] and [DELETE] for past un-reimbursable expenses: $140.109.67.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioners and the [DELETE] as reimbursement for the state's Medicaid lien: $7,821.81.
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 in column "G.R." above, 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 12 monthly installments at the discretion of respondent.
Note: Compensation Year 1 consists of the 12 month period following the date of judgment.
Compensation Year 2 consists of tile 12 month period commencing on the first anniversary of the date or judgment.
As soon as practicable after entry of judgment shall make the following payment to the court-appointed guardian(s)/custodian(s) of the estate of [DELETE] for the benefit of [DELETE] for lost future earnings {$674.410.67), pain and suffering ($208.160.68), and Yr 1 life care expenses ($624,713.32): $1.507,284.67.
As soon as practicable after entry of judgment, respondent shall make the following payment to petitioners. [DELETE] [DELETE] for past un-reimbursable expenses: $140,109.67.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioners and the State of [DELETE] as reimbursement for the state's Medicaid lien: $7,821.81.
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 in column "G.R." above, 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 12 monthly installments at the discretion of respondent.
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)/custodian(s) of the estate of [DELETE], for the benefit of [DELETE], for lost future earnings ($674,410.67), pain and suffering ($208,160.68), and Yr 1 life care expenses ($624,713.32): $1,507,284.67.
As soon as is practicable after entry of judgment, respondent shall make the following payment to petitioners, [DELETE] and [DELETE] for past un-reimbursable expenses: $140,109.67.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioners and the State of [DELETE] as reimbursement for the state's Medicaid lien: $7.821.81.
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 in column "G.R." above, compounded annually from the dale of judgment.
Items denoted with an asterisk (*) covered by health insurance and/or Medicare.
Items denoted with an "M" payable in 12 monthly installments at the discretion of respondent.
Note: Compensation Year I 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)/custodian(s) of the estate of [DELETE] for the benefit of [DELETE] for lost future earnings ($674.410.67), pain and suffering ($208,160.68), and Yr 1 life care expenses ($624,713.32): $1,507,284.67.
As soon as is practicable after entry of judgment, respondent shall make the following payment to petitioners, [DELETE] and [DELETE] for past un-reimbursable expenses: $140.109.67.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
PETITIONERS and the State of [DELETE] as reimbursement for the state's Medicaid lien: $7,821.81
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 in column "G.R." above, 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 12 monthly installments at the discretion of respondent.
_______________
Notes:1. Vaccine Rule 18(b) provides that all of the decisions of the special masters will be made available to the public unless an issued decision contains trade secrets or commercial or financial information that is privileged or confidential, or the decision contains medical or similar information the disclosure of which clearly would constitute an unwarranted invasion of privacy. When a special master issues a decision or substantive order, the parties have 14 days within which to move for the redaction of privileged or confidential information before the document's public disclosure.
2. The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C.A. § 300aa-10-§ 300aa-34 (West 1991 & Supp. 2002) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
3. Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties' joint filing of notice renouncing the right to seek review.
Notes: RESPONDENT'S PROFFER ON AWARD OF COMPENSATION1. The chart at Tab A illustrates the annual benefits provided by the life care plan. The annual benefit years run from the date of judgment up to the first anniversary of the date of judgment, and every year thereafter up to the anniversary of the date of judgment.
2. The Life Insurance Company must have a minimum 0[$250,000,000 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from two of the following rating organizations:
a. A.M. Best Company: A++, A+, A+g, A+p, A.+.r, or A+s;
b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aal, or Aaa;
c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-. AA. AA+, or AAA;
d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-. AA. AA+, or AAA.
