         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 16-766V
                                    Filed: November 3, 2017
                                         UNPUBLISHED


    MAX BAUM,
                                                             Special Processing Unit (SPU);
                        Petitioner,                          Damages Decision Based on Proffer;
    v.                                                       Influenza (Flu) Vaccine; Guillain-
                                                             Barre Syndrome (GBS)
    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.


Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Ilene Claire Albala, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

       On June 29, 2016, 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 he suffered Guillain-Barre Syndrome (“GBS”) as a result of
his November 12, 2015 influenza (“flu”) vaccination. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.

        On October 27, 2017, a ruling on entitlement was issued, finding petitioner
entitled to compensation for GBS. On November 2, 2017, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded
compensation on the terms set forth therein. Proffer at 1-5. In the Proffer, respondent
represented that petitioner agrees with the proffered award.


1
  Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
       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
the following compensation:

                A. A lump sum payment of $399,599.88, representing
        compensation for life care expenses expected to be incurred during the
        first year after judgment ($135,549.84), pain and suffering ($237,359.96),
        and past unreimbursable expenses ($26,690.08), in the form of a check
        payable to petitioner, Max Baum.

                 B. A lump sum payment of $46,640.43, representing
        compensation for satisfaction of the State of Illinois Medicaid lien, payable
        jointly to petitioner and

                    Illinois Department of Healthcare and Family Services
                                     Bureau of Collections
                                  Technical Recovery Section
                                    401 S. Clinton, 5th Floor
                                    Chicago, IL 60607-3800
                                Case No.: 91-200-0000FH1483
                                     Attn: Anthony Graham

                C. 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 company4 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, Max Baum, only so long as

3
   “In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more
life insurance companies.” Proffer at Note 3.
4
  “The Life Insurance Company must have a minimum of $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, Aa1, 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.” Proffer at Note 4.
5
 “Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case consistent
with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program
System of Records, No. 09-15-0056.” Proffer at Note 5.

                                                    2
        Max Baum 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 three percent (3%) 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: three percent (3%) 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, Max Baum, 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 Max Baum’s death.

               3. Guardianship
               Petitioner is a competent adult. Evidence of guardianship is not
        required in this case.

Proffer at 3-5. This amount represents compensation for all damages that would be
available under § 300aa-15(a).

       The clerk of the court is directed to enter judgment in accordance with this
decision.6

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          Chief Special Master




6
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.


                                                      3
                IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                          OFFICE OF SPECIAL MASTERS


MAX BAUM,

               Petitioner,

v.                                                    No. 16-766V
                                                      Chief Special Master Dorsey
SECRETARY OF HEALTH AND                               ECF
HUMAN SERVICES,

               Respondent.



                       PROFFER ON AWARD OF COMPENSATION

       On June 29, 2016, Max Baum (“petitioner”) filed a petition for compensation (“Petition”)

under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34

(“Vaccine Act” or “Act”), as amended. Petitioner alleges that he suffered Guillain-Barré

syndrome (“GBS”) as a result of an influenza (“flu”) vaccine administered on November 12,

2015. Petition at 1. On October 27, 2017, Chief Special Master Dorsey issued an order finding

that petitioner is entitled to compensation. Ruling on Entitlement, D.I. 45. The following is

respondent’s proffer on damages.

I.     Items of Compensation

       A.      Life Care Items

       Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLP, and petitioner

engaged Brook Feerick, RN, CCM, CNLCP, to provide an estimation of Max Baum’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, which was filed on October 26, 2017. All items

of compensation identified in the life care plan are supported by the evidence, and are illustrated



                                                -1-
by the chart entitled Appendix A: Items of Compensation for Max Baum, attached hereto as Tab

A. 1 Respondent proffers that Max Baum 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, Max Baum has not suffered a

past loss of earnings and will not suffer a loss of earnings in the future. Therefore, respondent

proffers that Max Baum should not be awarded lost earnings as provided under the Vaccine Act,

42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.

          C.     Pain and Suffering

          Respondent proffers that Max Baum should be awarded $237,359.96 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 Max Baum’s 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 $26,690.08.

          E.     Medicaid Lien

          Respondent proffers that Max Baum should be awarded funds to satisfy a State of Illinois

lien in the amount of $46,640.43, which represents full satisfaction of any right of subrogation,

assignment, claim, lien, or cause of action that the State of Illinois may have against any

individual as a result of any Medicaid payments the State of Illinois has made to or on behalf of


1
  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-
Max Baum from the date of his eligibility for benefits through the date of judgment in this case

as a result of his vaccine-related injury suffered on or about November 12, 2015, under Title XIX

of the Social Security Act.

II.    Form of the Award

       The parties recommend that the compensation provided to Max Baum 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 award the following: 2

       A. A lump sum payment of $399,599.88, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($135,549.84), pain and

suffering ($237,359.96), and past unreimbursable expenses ($26,690.08), in the form of a check

payable to petitioner, Max Baum.

       B. A lump sum payment of $46,640.43, representing compensation for satisfaction of the

State of Illinois Medicaid lien, payable jointly to petitioner and

                          Illinois Department of Healthcare and Family Services
                                          Bureau of Collections
                                       Technical Recovery Section
                                         401 S. Clinton, 5th Floor
                                         Chicago, IL 60607-3800
                                      Case No.: 91-200-0000FH1483
                                          Attn: Anthony Graham

       C. 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,




2
  Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future medical
expenses, future lost earnings, and future pain and suffering.
3
 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or
more life insurance companies.

                                                 -3-
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,

Max Baum, only so long as Max Baum 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 three percent (3%) 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: three percent (3%) 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.




4
 The Life Insurance Company must have a minimum of $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, Aa1, 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.

                                                 -4-
       2.      Life-contingent annuity

       Petitioner will continue to receive the annuity payments from the Life Insurance

Company only so long as he, Max Baum, 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 Max Baum’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, Max Baum:                                $399,599.88

       B.      Medicaid lien:                                                        $ 46,640.43

       C.      An amount sufficient to purchase the annuity contract described
               above in section II.C.




                                              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

                                              ALEXIS B. BABCOCK
                                              Assistant Director
                                              Torts Branch, Civil Division



5
  Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case
consistent with the Privacy Act and the routine uses described in the National Vaccine Injury
Compensation Program System of Records, No. 09-15-0056.
                                                 -5-
                         /s/ Ilene Albala
                         ILENE ALBALA
                         Trial Attorney
                         Torts Branch, Civil Division
                         U.S. Department of Justice
                         P.O. Box 146
                         Ben Franklin Station
                         Washington, D.C. 20044-0146
                         Direct dial: (202) 616-3655
Date: November 2, 2017




                           -6-
Respondent’s Tab A
                                  Appendix A: Items of Compensation for Max Baum                      Page 1 of 2

                                                            Lump Sum
                                                           Compensation   Compensation     Compensation
         ITEMS OF COMPENSATION              G.R.   *   M     Year 1         Year 2          Years 3-Life
                                                              2017           2018            2019-Life
PM&R                                        5%     *
Internist                                   5%     *
Neurologist                                 5%     *
Podiatrist                                  3%                  852.00           852.00           852.00
Hospitalization                             5%     *
ER                                          5%     *
Blood Work                                  5%     *
Urinalysis                                  5%     *
EMG                                         5%     *
TB Test                                     5%     *
Venous Doppler Study                        5%     *
Bisacodyl Supp                              3%                    6.60              6.60             6.60
Vit B-12                                    3%                   18.25             18.25            18.25
Senna                                       3%                   65.70             65.70            65.70
Citalopram                                  5%     *
Deplin                                      5%     *
Furosemide                                  5%     *
Ativan                                      5%     *
Hydrocortisone Cream                        5%     *
Biofreeze                                   3%                  269.52           269.52           269.52
Capsaicin Cream                             3%                  504.00           504.00           504.00
Coumadin 1mg & 2.5mg                        5%     *
Potassium Chloride                          5%     *
Finasteride                                 5%     *
Alendronate Sodium                          5%     *
Ibuprofen                                   3%                    5.76              5.76             5.76
Acetaminophen (2)                           3%                   21.87             21.87            21.87
PT Eval                                     3%     *
PT                                          3%         M       5,658.00        5,658.00          1,074.00
OT Eval                                     3%     *
OT                                          3%         M       2,997.00          621.00            621.00
Recreational Therapy                        3%         M       3,437.00        3,437.00          3,437.00
Custom Shoes                                3%                   386.00          386.00            386.00
Hoyer Lift per Rehab Mart Price             3%                 2,312.00
Slings for Lift per Rehab Mart              3%                    92.00            92.00            92.00
Manual WC                                   3%     *
Roho Cushion                                3%                  429.00           143.00           143.00
Cover for Cushion                           3%                   98.00            32.67            32.67
Walker                                      3%                  111.00            22.20            22.20
Positioning Pillows                         3%                  187.50            62.50            62.50
Hand Weights                                3%                   57.00
E-stim                                      3%     *
E-stim Supplies                             3%     *
                                        Appendix A: Items of Compensation for Max Baum                                 Page 2 of 2

                                                                      Lump Sum
                                                                     Compensation      Compensation       Compensation
         ITEMS OF COMPENSATION                      G.R.   *    M       Year 1           Year 2            Years 3-Life
                                                                         2017             2018              2019-Life
Compression Stockings                                3%                     76.64              76.64               76.64
Skilled Nursing Facility                             3%         M      114,245.00         114,245.00          114,245.00
Case Mngt                                            3%         M        2,640.00           2,640.00            2,640.00
Transportation                                       3%                  1,080.00           1,080.00            1,080.00
Pain and Suffering                                                     237,359.96
Past Unreimbursable Expenses                                            26,690.08
Medicaid Lien                                                           46,640.43
Annual Totals                                                           446,240.31         130,239.71         125,655.71
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 ($135,549.84), pain and suffering ($237,359.96), and past unreimbursable
expenses ($26,690.08): $399,599.88.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and the State of Illinois, as reimbursement of the state's Medicaid lien: $46,640.43.
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.
