In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS

********************                  *
JAMES SCHUTTE, as guardian and        *
conservator of CAROLYN                *      No. 14-239V
SCHUTTE, an incapacitated and         *
disabled person,                      *      Special Master Christian J. Moran
                                      *
                   Petitioner,        *      Filed: February 24, 2015
v.                                    *
                                      *      Damages; decision based on proffer;
SECRETARY OF HEALTH                   *      tetanus, diphtheria, acellular pertussis
AND HUMAN SERVICES,                   *      (“Tdap”) vaccine; on-Table
                                      *      encephalopathy.
                   Respondent.        *
******************** *
Leland F. Dempsey, Dempsey & Kingsland, P.C., Kansas City, MO, for Petitioner;
Lisa A. Watts, United States Dep’t of Justice, Washington, DC, for Respondent.

                UNPUBLISHED DECISION AWARDING DAMAGES1

      On March 28, 2014, James Schutte, filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. §300aa—10 through 34, on behalf of his
spouse, Carolyn Schutte, alleging that Carolyn suffered the Table injury of
encephalopathy resulting from her receipt of the tetanus, diphtheria, acellular
pertussis (“Tdap”) vaccine on June 22, 2011. On July 31, 2014, the undersigned
determined that petitioner is entitled to compensation under the Vaccine Act.

       On February 23, 2015, respondent filed a Proffer on Award of
Compensation, to which petitioner agrees. Based upon the record as a whole, the
special master finds the proffer reasonable and that petitioner is entitled to an
award as stated in the Proffer. Pursuant to the attached Proffer, the court awards
petitioner:


1
  The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002), requires that the
Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion
proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any
redactions ordered by the special master will appear in the document posted on the website.
        A. A lump sum payment of $1,594,506.14, representing compensation
           for life care expenses expected to be incurred the first year after
           judgment ($169,089.65), lost earnings ($1,175,416.49), and pain and
           suffering ($250,000.00), in the form of a check payable to petitioner,
           James Schutte, as guardian/conservator of Carolyn Schutte, for the
           benefit Carolyn Schutte.

        B. A lump sum payment of $88,598.50, representing compensation for
           past unreimbursable expenses, in the form of a check payable to
           petitioner, James Schutte.

        C. An amount sufficient to purchase the annuity contract described in
           section II.C. of the attached Proffer (“Appendix A”).

       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.

        Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6360.

        IT IS SO ORDERED.

                                             s/Christian J. Moran
                                             Christian J. Moran
                                             Special Master




                                         2
             Case 1:14-vv-00239-UNJ Document 29 Filed 02/23/15 Page 1 of 6

                   IN THE UNITED STATES COURT OF FEDERAL CLAIMS

                              OFFICE OF SPECIAL MASTERS
______________________________________
JAMES SCHUTTE, as guardian and             )
conservator of CAROLYN SCHUTTE,            )
an incapacitated and disabled person,      )
                                           ) ECF
                              Petitioner,  )
                                           )
               v.                          ) No. 14-239V
                                           ) Special Master
SECRETARY OF HEALTH AND HUMAN ) Christian J. Moran
SERVICES,                                  )
                                           )
                              Respondent.  )
                                           )

               RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I.       Items of Compensation

         A.       Life Care Items

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

petitioner engaged Liz Kattman, BS, MS, to provide an estimation of Carolyn Schutte’s future

vaccine-injury related needs. For the purposes of this proffer, the term “vaccine-related” is as

described in respondent’s Rule 4(c) Report filed July 23, 2014. All items of compensation

identified in the life care plan are illustrated by the chart entitled Appendix A: Items of

Compensation for Carolyn Schutte, attached hereto as Tab A. 1 Respondent proffers that Carolyn

Schutte 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.

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               Case 1:14-vv-00239-UNJ Document 29 Filed 02/23/15 Page 2 of 6

          B.       Lost Earnings

          The parties agree that based upon the evidence of record, Carolyn Schutte has suffered a

loss of earnings in the past and will not be gainfully employed in the future. Therefore,

respondent proffers that Carolyn Schutte 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

Carolyn Schutte’s lost earnings is $1,175,416.49. Petitioner agrees.

          C.       Pain and Suffering

          Respondent proffers that Carolyn Schutte should be awarded $250,000.00 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. 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 Carolyn Schutte's vaccine-related injury. Respondent proffers that petitioner

should be awarded past unreimbursable expenses in the amount of $88,598.50. Petitioner agrees.

          E.       Medicaid Lien

          Petitioner represents that there are no outstanding Medicaid liens against Carolyn

Schutte.

II.       Form of the Award

          The parties recommend that the compensation provided to Carolyn Schutte should be

made through a combination of lump sum payments and future annuity payments as described




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             Case 1:14-vv-00239-UNJ Document 29 Filed 02/23/15 Page 3 of 6

below, and request that the Special Master’s decision and the Court’s judgment award the

following: 2

         A. A lump sum payment of $1,594,506.14, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($169,089.65), lost earnings

($1,175,416.49), and pain and suffering ($250,000.00) in the form of a check payable to

petitioner as guardian/conservator of Carolyn Schutte, for the benefit Carolyn Schutte. Petitioner

has filed documentation establishing that he has been appointed as the guardian/conservator of

Carolyn Schutte's estate. See Petitioner’s Exhibit 33. If petitioner is not currently authorized by

a court of competent jurisdiction to serve as guardian/conservator of the estate of Carolyn

Schutte, any such payment shall be made to the party or parties appointed by a court of

competent jurisdiction to serve as guardian/conservator of the estate of Carolyn Schutte upon

submission of written documentation of such appointment to the Secretary.

         B. A lump sum payment of $88,598.50, representing compensation for past

unreimbursable expenses, in the form of a check payable to petitioner, James Schutte.

         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 company 4 from



         2
           Should Carolyn Schutte 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.
         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;

                                                         -3-
              Case 1:14-vv-00239-UNJ Document 29 Filed 02/23/15 Page 4 of 6

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

(or any other party who is appointed) as guardian/conservator of the estate of Carolyn Schutte,

only so long as Carolyn Schutte 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 Carolyn Schutte is alive at the time that a particular payment is due.




                  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.
         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.
                                                         -4-
            Case 1:14-vv-00239-UNJ Document 29 Filed 02/23/15 Page 5 of 6

Written notice shall be provided to the Secretary of Health and Human Services and the Life

Insurance Company within twenty (20) days of Carolyn Schutte’s death.

       3.       Guardianship

       Petitioner has filed documentation establishing that he has been appointed as the

guardian/conservator of Carolyn Schutte's estate. See Petitioner’s Exhibit 33. If petitioner is not

currently authorized by a court of competent jurisdiction to serve as guardian/conservator of the

estate of Carolyn Schutte, any such payment shall be made to the party or parties appointed by a

court of competent jurisdiction to serve as guardian/conservator of the estate of Carolyn Schutte

upon submission of written documentation of such appointment to the Secretary.

III.   Summary of Recommended Payments Following Judgment

       A.       Lump Sum paid to petitioner as guardian/conservator of
                Carolyn Schutte’s estate:                                           $1,594,506.14

       B.       Lump Sum paid to petitioner, James Schutte:                         $   88,598.50

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

                                             Respectfully submitted,

                                             JOYCE R. BRANDA
                                             Acting Assistant Attorney General

                                             RUPA BHATTACHARYYA
                                             Director
                                             Torts Branch, Civil Division

                                             VINCENT J. MATANOSKI
                                             Deputy Director
                                             Torts Branch, Civil Division

                                             LINDA S. RENZI
                                             Senior Trial Counsel
                                             Torts Branch, Civil Division




                                                -5-
         Case 1:14-vv-00239-UNJ Document 29 Filed 02/23/15 Page 6 of 6



                                    s/Lisa A. Watts
                                    LISA A. WATTS
                                    Senior Trial Attorney
                                    Torts Branch, Civil Division
                                    U.S. Department of Justice
                                    P.O. Box 146
                                    Benjamin Franklin Station
                                    Washington, D.C. 20044-0146
                                    Telephone: (202) 616-4099

Dated: February 23, 2015.




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