                 In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                          Filed: July 26, 2018

* * * * * * *                   *   *   *    *   *    *
CHERYL GARVIN,                                        *                 UNPUBLISHED
                                                      *
                  Petitioner,                         *                 No. 17-101V
                                                      *
v.                                                    *                 Special Master Gowen
                                                      *
SECRETARY OF HEALTH                                   *                 Influenza (“Flu”) Vaccination;
AND HUMAN SERVICES,                                   *                 Guillain-Barré syndrome (“GBS”);
                                                      *                 Damages.
                  Respondent.                         *
                                                      *
*    * *     *    *   *    *    *   *   *    *   *    *

Ronald M. Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Camille M. Collett, United States Department of Justice, Washington, DC, for respondent.

                                        DECISION ON DAMAGES1

        On January 23, 2017, Cheryl Garvin (“petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 Petitioner alleged that she
suffered Guillain-Barré syndrome (“GBS”) as a result of receiving an influenza (“flu”)
vaccination on November 4, 2015. Petition (ECF No. 1) at Preamble; see also Amended Petition
filed on April 3, 2017 (ECF No. 13).

        On November 20, 2017, respondent filed his report in accordance with Vaccine Rule
4(c), in which respondent indicates that he will not contest entitlement in this matter.
Respondent’s Report (ECF No. 28). The undersigned directed the parties to begin discussing the
appropriate amount of compensation. The parties and their counsel worked diligently to do so. I
have since issued a ruling that petitioner is entitled to compensation. Ruling on Entitlement
(ECF No. 40).

1
  Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision
is posted on the court’s website, each party has 14 days to file a motion requesting redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. Id.
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. §§ 300aa-1 to 34 (2012)
(“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.
        On July 24, 2018, respondent filed a proffer on an award of compensation, which
indicated petitioner’s agreement to compensation on the terms set forth therein. Proffer (ECF
No. 39). The proffer is attached hereto as Exhibit A and incorporated in my decision.

       Consistent with the terms of the proffer, the undersigned hereby awards the
following compensation for all damages that would be available under Section 15(a):

         1) A lump sum payment of $161,119.33 (representing compensation for life care
            expenses expected to be incurred during the first year after judgment ($8,600.16), lost
            earnings ($508.90), pain and suffering ($150,000.00), and past unreimbursable
            expenses ($2,010.27), in the form of a check payable solely to petitioner.

         2) An amount sufficient to purchase an annuity contract as described in Section
            II.B of the proffer, made payable to the life insurance company from which the
            annuity will be purchased.

       The Clerk of the Court is directed to ENTER JUDGMENT in accordance with this
decision.3

         IT IS SO ORDERED.

                                                       s/Thomas L. Gowen
                                                       Thomas L. Gowen
                                                       Special Master




3
  Pursuant to Vaccine Rule 11(a), the entry of judgment is expedited by the parties jointly or separately filing notice
renouncing the right to seek review.


                                                           2
                   IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                             OFFICE OF SPECIAL MASTERS


CHERYL GARVIN,

                  Petitioner,

v.                                                              No. 17-101V
                                                                Special Master Gowen
SECRETARY OF HEALTH AND                                         ECF
HUMAN 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, CCM, CNLP, to provide an

estimation of Cheryl Garvin’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, filed

November 20, 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

Cheryl Garvin, attached hereto as Tab A. 1 Respondent proffers that Cheryl Garvin 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, Cheryl Garvin has suffered past

loss of earnings. Therefore, respondent proffers that Cheryl Garvin should be awarded lost


         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-
earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Respondent

proffers that the appropriate award for Cheryl Garvin’s lost earnings is $508.90. Petitioner

agrees.

          C.      Pain and Suffering

          Respondent proffers that Cheryl Garvin should be awarded $150,000.00 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 Cheryl Garvin’s expenditure of past

unreimbursable expenses related to her vaccine-related injury. Respondent proffers that

petitioner should be awarded past unreimbursable expenses in the amount of $2,010.27.

II.       Form of the Award

          The parties recommend that the compensation provided to Cheryl Garvin 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: 2

          A. A lump sum payment of $161,119.33, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($8,600.16), lost earnings

($508.90), pain and suffering ($150,000.00), and past unreimbursable expenses ($2,010.27), in

the form of a check payable to petitioner, Cheryl Garvin.

          B. 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.
                                                         -2-
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,

Cheryl Garvin, only so long as Cheryl Garvin 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




         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;

                  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.
                                                         -3-
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 she, Cheryl Garvin, 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 Cheryl Garvin’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, Cheryl Garvin:                         $161,119.33

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

                                             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

                                             HEATHER L. PEARLMAN
                                             Assistant Director
                                             Torts Branch, Civil Division




                                                 -4-
                       /s/Camille M. Collett
                       CAMILLE M. COLLETT
                       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) 616-4098

Dated: July 24, 2018




                         -5-
                                       Appendix A: Items of Compensation for Cheryl Garvin                             Page 1 of 1

                                                       Lump Sum
                                                      Compensation Compensation
  ITEMS OF COMPENSATION              G.R.   *    M      Year 1      Years 2-Life
                                                         2018        2019-Life
PCP                                  5%     *
Neurologist                          5%     *
Lab Testing                          5%     *
Diagnostic Testing                   5%     *
Meloxicam                            5%     *                47.76             47.76
Celexa                               5%     *                51.60             51.60
Linzess                              5%     *               288.00            288.00
Depends                              4%          M          430.92            430.92
Poise Pads                           4%          M          426.24            426.24
Probiotics                           4%          M          155.64            155.64
House Cleaning                       4%          M        1,740.00          1,740.00
Home Health Care                     4%          M        5,460.00          5,460.00
Lost Future Earnings                                        508.90
Pain and Suffering                                      150,000.00
Past Unreimbursable Expenses                              2,010.27
Annual Totals                                           161,119.33          8,600.16
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 ($8,600.16), lost earnings ($508.90), pain and suffering ($150,000.00), and past unreimbursable
expenses ($2,010.27): $161,119.33.
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.
