         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 16-974V
                                    Filed: December 6, 2017
                                  Reissued: January 12, 20181
                                         UNPUBLISHED


    DAVID DAVIS,
                                                             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.


Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES2

Dorsey, Chief Special Master:

        On August 10, 2016, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,3 (the
“Vaccine Act”). Petitioner alleges that he suffered Guillain-Barré syndrome (“GBS”) as a
result of an influenza (“flu”) vaccine administered on September 23, 2015. Petition at ¶¶
1-16. The case was assigned to the Special Processing Unit of the Office of Special
Masters.



1
  This reissued decision corrects a clerical error in the damaged awarded by the December 6, 2017
decision
.
2
  Because this unpublished decision contains a reasoned explanation for the action in this case, the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.
3
 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).
       On August 3, 2017, a ruling on entitlement was issued, finding petitioner entitled
to compensation for his GBS injury. On December 1, 2017, respondent filed a proffer
on award of compensation (“Proffer”). Respondent proffers that, based upon her review
of the evidence of record, petitioner should be awarded:

      A. A lump sum in the amount of $269,910.66 in the form of a check payable to
         petitioner, David Davis;

      B. A lump sum payment of $68,394.18, representing compensation for
         satisfaction of the State of North Carolina Medicaid lien; and

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

       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:

      A. A lump sum in the amount of $269,910.66 in the form of a check payable
         to petitioner, David Davis;

      B. A lump sum payment of $68,394.18, representing compensation for
         satisfaction of the State of North Carolina Medicaid lien payable jointly
         to petitioner and
                               Division of Medical Assistance
                                   Office of the Controller
                                  2022 Mail Service Center
                                   Raleigh, NC 27699-2022
                           Medicaid/Health Choice ID: 950280035O
                                    Attn: Tonya Fulgham

          Petitioner agrees to endorse this payment to the State of North Carolina;
          and

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

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




                                            2
       The clerk of the court is directed to enter judgment in accordance with this
decision.4 Pursuant to Vaccine Rule 36(c), all damages are to be calculated based on
the date of the original judgment, December 7, 2017, ECF No. 42.

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




4
  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
__________________________________________
                                           )
DAVID DAVIS,                               )
                                           )
                  Petitioner,              )
                                           )
      v.                                   )  No. 16-974V
                                           )  Chief Special Master Dorsey
SECRETARY OF THE DEPARTMENT OF             )
HEALTH AND 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, RN, CDDN, CLCP, and

petitioner engaged Roberta Hurley, B.S., Ed., to provide an estimation of David Davis’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 August 3, 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 David Davis, attached hereto as

Tab . 1 Respondent proffers that David Davis 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.


         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.
                                                          1
B.        Lost Earnings

          The parties agree that based upon the evidence of record, David Davis has not suffered a

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

respondent proffers that David Davis 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 David Davis should be awarded $175,000.00 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 David Davis’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 $670.36. Petitioner

agrees.

          E.     Medicaid Lien

          Respondent proffers that David Davis should be awarded funds to satisfy a State of North

Carolina lien in the amount of $68,394.18, which represents full satisfaction of any right of

subrogation, assignment, claim, lien, or cause of action that the State of North Carolina may have

against any individual as a result of any Medicaid payments the State of North Carolina has

made to or on behalf of David Davis from the date of his eligibility for benefits through the date


                                                  2
of judgment in this case as a result of his vaccine-related injury suffered on or about , under Title

XIX of the Social Security Act.

II.      Form of the Award

         The parties recommend that the compensation provided to David Davis 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 $269,910.66, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($94,240.30), pain and

suffering ($175,000.00), and past unreimbursable expenses ($670.36), in the form of a check

payable to petitioner, David Davis.

         B. A lump sum payment of $68,394.18, representing compensation for satisfaction of the

State of North Carolina Medicaid lien, payable jointly to petitioner and

                                          Division of Medical Assistance
                                              Office of the Controller
                                             2022 Mail Service Center
                                             Raleigh, NC 27699-2022
                                      Medicaid/Health Choice ID: 950280035O
                                               Attn: Tonya Fulgham

         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,

David Davis, only so long as David Davis 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




        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
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, David 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 David 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, David Davis:                                         $269,910.66

         B.       Medicaid lien:                                                                    $ 68,394.18

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

                                                      Respectfully submitted,

                                                      CHAD A. READLER
                                                      Principal Deputy Assistant Attorney General

                                                      C. SALVATORE D’ALESSIO
                                                      Acting Director
                                                      Torts Branch, Civil Division

                                                      CATHARINE E. REEVES
                                                      Deputy 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
                          ALEXIS B. BABCOCK
                          Assistant Director
                          Torts Branch, Civil Division

                          s/Lisa A. Watts
                          LISA A. WATTS
                          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) 616-4099

Dated: December 1, 2017




                             6
                                    Appendix A: Items of Compensation for David Davis                          Page 1 of 1
                                                 Lump Sum
                                                Compensation Compensation Compensation         Compensation     Compensation
  ITEMS OF COMPENSATION           G.R * M          Year 1      Years 2-5       Years 6-8         Year 9         Years 10-Life
                                                    2017       2018-2021       2022-2024          2025           2026-Life
Medicare Supp                     5%       M        1,827.00       1,827.00       1,827.00         1,827.00         1,827.00
PCP                               5% *
Neurologist                       5% *
Miralax                           3%                   85.76          85.76          85.76             85.76             85.76
PT                                3% *
Therapist                         3% *
Heavy Duty Power WC               3% *
Jay Seat                          3% *
Lift Chair                        3%                                                                 812.00              81.20
Adj Bed                           3% *
Wheel in Shower Chair             3%                  289.00          57.80          57.80             57.80             57.80
Raised Toilet Seat                3%                   51.89          25.95          25.95             25.95             25.95
Water Shoes                       3%                   24.95          24.95
Posey Belt                        3%                   38.95          19.48          19.48             19.48             19.48
Adult Depends                     3%       M        1,934.80       1,934.80       1,934.80          1,934.80          1,934.80
Disp Underpads                    3%                   67.95          67.95          67.95             67.95             67.95
Assisted Living One Time Fee      3%                2,500.00
Assisted Living                   3%       M       87,420.00     87,420.00       87,420.00         87,420.00        87,420.00
Pain and Suffering                                175,000.00
Past Unreimbursable Expenses                          670.36
Medicaid Lien                                      68,394.18
Annual Totals                                      338,304.84       91,463.69      91,438.74       92,250.74         91,519.94
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 ($94,240.30), pain and suffering ($175,000.00), and past unreimbursable expenses ($670.36): $269,910.66.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and the State of North Carolina, as reimbursement of the state's Medicaid lien: $68,394.18.
Annual amounts payable through an annuity for future Compensation Years follow the anniversary of 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.
