         In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                              No. 11-707V
                                          Filed: July 19, 2016

********************************
BONYE WOLF BARONE, as Conservator     *
of Person and Estate of JOAN NOVARRO, *
                                      *
                 Petitioner,          *                           Special Master Corcoran
                                      *
              v.                      *
                                      *                           Damages Decision;
SECRETARY OF HEALTH AND               *                           Influenza (“Flu”) Vaccine;
HUMAN SERVICES,                       *                           Guillain-Barré Syndrome (“GBS”).
                                      *
                  Respondent.         *
                                      *
********************************

Rene Gentry, George Washington University Law School Vaccine Injury Clinic, Washington,
             DC, for Petitioner.

Lisa Watts, U.S. Dep’t of Justice, Washington, DC, for Respondent.

                                   DECISION AWARDING DAMAGES1

        On October 25, 2011, Joan Novarro filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner3 alleges that
Joan Novarro developed Guillain-Barré syndrome (“GBS”) as a result of her October 31, 2008,
receipt of the influenza (“flu”) vaccine. Moreover, Petitioner alleges that Ms. Novarro experienced


1
  Because this decision contains a reasoned explanation for my actions in this case, I will 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 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain
kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which
to request 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). Otherwise, the whole decision will
be available to the public. Id.
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
3
 On February 18, 2014 (ECF No. 46), Petitioner moved to amend the caption to make Bonye Wolf Barone,
Conservator of Person and Estate of Joan Novarro, the petitioner, and I granted the motion on April 17, 2014. ECF
No. 49.
residual effects of this injury for more than six months.

        After a motion for a ruling on the record, I issued an entitlement decision in Petitioner’s
favor. See Ruling on Entitlement, dated Nov. 12, 2014 (ECF No. 58). The parties subsequently
attempted to calculate Ms. Novarro’s damages award, but experienced difficulties reaching an
agreement with regarding to one item: the necessity of daily attendant care for Ms. Novarro in the
skilled nursing facility to which she will be transferred after a damages award is made in this case.
A hearing was held to resolve this question on March 31, 2016, and then on May 12, 2016, I issued
a ruling finding that Petitioner has established the propriety of some, but not all, of the hours of
attendant care requested.

        On July 14, 2016, Respondent filed a status report concerning damages that contained a
proffer. I have reviewed the file, and based upon that review, I conclude that the parties’ proffer
(as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the
terms set forth therein.

       The proffer awards:

      A lump sum payment of $661,082.54, representing compensation for life care expenses
       (including the attendant care awarded by my decision) expected to be incurred during the
       first year after judgment ($167,895.32), lost earnings ($38,570.26), pain and suffering
       ($250,000.00), and past unreimbursable expenses ($204,616.96), in the form of a check
       payable to Petitioner, as conservator of the estate of Joan Novarro for the benefit of Joan
       Novarro; and

      A lump sum payment of $65,123.15, representing compensation for satisfaction of the State
       of Connecticut Medicaid lien, payable jointly to petitioner, as conservator of the estate of
       Joan Novarro, and

               Connecticut Department of Administrative Services
               165 Capitol Avenue
               Hartford, CT 06106-1658
               Attn: Ms. Susan Kitchens
               Case Name: NOVARRO, JOAN
               Case Number: 3665299

       These amounts represent compensation for all elements of compensation under 42 U.S.C.
§ 300aa-15(a) to which Petitioner is entitled.


                                                 2
        I approve a Vaccine Program award in the requested amounts set forth above to be made
to Petitioner. 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.4


         IT IS SO ORDERED.

                                                                       /s/ Brian H. Corcoran
                                                                          Brian H. Corcoran
                                                                          Special Master




4
 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.

                                                           3
               IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                              OFFICE OF SPECIAL MASTERS
____________________________________
BONYE WOLF BARONE, as Conservator )
of Person and Estate of, JOAN NOVARRO, )
                                          ) ECF
                      Petitioner,         )
                                          )
              v.                          ) No. 11-707V
                                          ) Special Master
SECRETARY OF HEALTH                       ) Brian H. Corcoran
AND HUMAN SERVICES,                       )
                                          )
                              Respondent. )
                                          )

             RESPONDENT’S STATUS REPORT REGARDING DAMAGES

       Respondent hereby submits the following status report concerning damages.

I.     Items of Compensation

       A.      Life Care Items

       Respondent engaged life care planner Laura Fox, MSN, RN, CNLCP and petitioner

engaged Nancy J. Bond, M.Ed., CLCP, CCM to provide an estimation of Joan Novarro’s future

vaccine-injury-related needs. A life care plan was previously filed in this case (Resp. Ex. D),

and the agreed-upon life care items are illustrated by the chart entitled “Appendix A: Proffered

Items of Compensation for Joan Novarro,” attached to this Status Report as Tab A. 1 Respondent

proffers that Joan Novarro should be awarded all items of compensation 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.
          In addition, the Special Master’s May 12, 2016, ruling awarding additional attendant care

is illustrated by the chart entitled “Appendix B: Attendant Care Awarded by Special Master for

Joan Novarro,” attached to this Status Report as Tab B. 2 Petitioner agrees.

          B.     Lost Earnings

          The parties agree that based upon the evidence of record, Joan Novarro has suffered a

past loss of earnings. Therefore, respondent proffers that Joan Novarro 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 Joan Novarro’s lost earnings is $38,570.26. Petitioner

agrees.

          C.     Pain and Suffering

          Respondent proffers that Joan Novarro should be awarded $250,000.00 in actual pain and

suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

          D.     Past Unreimbursable Expenses

          Evidence supplied by petitioner documents Joan Novarro’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 $204,616.96.

Petitioner agrees.

          E.     Medicaid Lien

          Respondent proffers that Joan Novarro should be awarded funds to satisfy the State of

Connecticut lien in the amount of $65,123.15, which represents full satisfaction of any right of



          2
         The chart at Tab B illustrates the annual benefits consistent with the Special Master’s
May 12, 2016, decision on attendant care. 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
subrogation, assignment, claim, lien, or cause of action the State of Connecticut may have

against any individual as a result of any Medicaid payments the State of Connecticut has made to

or on behalf of Joan Novarro 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 August 23,

2010, under Title XIX of the Social Security Act. Petitioner agrees.

II.    Form of the Award

       The parties request that the compensation provided to petitioner be made through a

combination of lump sum payments and future annuity payments as described below, and request

the Special Master’s decision and the Court’s judgment award the following 3:

       A.      A lump sum payment of $661,082.54, representing compensation for life care

expenses (including attendant care awarded by the Special Master) expected to be incurred

during the first year after judgment ($167,895.32), lost earnings ($38,570.26), pain and suffering

($250,000.00), and past unreimbursable expenses ($204,616.96), in the form of a check payable

to petitioner, as conservator of the estate of Joan Novarro for the benefit of Joan Novarro.

       B. A lump sum payment of $65,123.15, representing compensation for satisfaction of the

State of Connecticut Medicaid lien, payable jointly to petitioner, as conservator of the estate of

Joan Novarro, and

                       Connecticut Department of Administrative Services
                                     165 Capitol Avenue
                                   Hartford, CT 06106-1658
                                   Attn: Ms. Susan Kitchens
                               Case Name: NOVARRO, JOAN
                                    Case Number: 3665299

Petitioner agrees to endorse this payment to the State of Connecticut.


       3
         Should Joan Novarro 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 and future pain and suffering.
                                                 3
       C. An amount sufficient to purchase an annuity contract, 4 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 and attendant care awarded by the Special Master as

illustrated by the chart at Tab B, attached hereto, paid to the life insurance company 5 from which

the annuity will be purchased. 6 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, as the court-

appointed conservator of the estate of Joan Novarro for the benefit of Joan Novarro, only so long

as Joan Novarro is alive at the time a particular payment is due. At the Secretary’s sole

discretion, the periodic payments may be provided to the court-appointed conservator of the

estate of Joan Novarro in monthly, quarterly, annual or other installments. The “annual

amounts” set forth in the chart at Tab A and in the chart at Tab B describe only the total yearly




       4
        In respondent’s discretion, respondent may purchase one or more annuity contracts
from one or more life insurance companies.
       5
          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.
       6
         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
sums to be paid to the court-appointed conservator of the estate of Joan Novarro 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 and Tab B 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.

       2.        Life-contingent annuity

       The court-appointed conservator of the estate of Joan Novarro will continue to receive

the annuity payments from the Life Insurance Company only so long as Joan Novarro 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 Joan

Novarro’s death.

       3.        Conservatorship

       Petitioner has filed documentation establishing that she has been appointed by a court of

competent jurisdiction as the conservator of the estate of Joan Novarro. See Pet. Ex. 52. If

petitioner is not authorized by a court of competent jurisdiction to serve as the conservator of the

estate of Joan Novarro at the time a particular payment is due, any such payment shall be made

to the party or parties appointed by a court of competent jurisdiction to serve as the conservator

or the estate of Joan Novarro upon submission of written documentation of such appointment to

the Secretary.



                                                 5
       III.   Summary of Payments Following Judgment

A.     Lump sum paid to petitioner, as the court-appointed conservator of the
       estate of Joan Novarro for the benefit of Joan Novarro:                    $661,082.54

B.     Medicaid Lien:                                                             $ 65,123.15

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

                                                   Respectfully submitted,

                                                   BENJAMIN C. MIZER
                                                   Principal Deputy Assistant Attorney General

                                                   RUPA BHATTACHARYYA
                                                   Director
                                                   Torts Branch, Civil Division

                                                   CATHARINE E. REEVES
                                                   Acting Deputy Director
                                                   Torts Branch, Civil Division

                                                   GABRIELLE M. FIELDING
                                                   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 146
                                                   Benjamin Franklin Station
                                                   Washington, D.C. 20044-0146
                                                   Tel: (202) 616-4099

Dated: July 14, 2016




                                               6
                                              Appendix A: Proffered Items of Compensation for Joan Novarro                              Page 1 of 2


                                             Lump Sum
                                            Compensation Compensation     Compensation   Compensation   Compensation    Compensation
  ITEMS OF COMPENSATION          G.R. *   M   Year 1       Year 2           Year 3         Year 4         Year 5         Years 6-Life
                                               2016         2017             2018           2019           2020           2021-Life
Medicare Part D                  5%            1,042.20      1,042.20         1,042.20       1,042.20       1,042.20         1,042.20
Primary Care                     5%   *
Physical Medicine & Rehab        5%   *
Baclofen Pump Refills            5%   *
Transport Baclofen Pump Refill   4%               222.65         222.65         222.65         222.65         222.65          222.65
Podiatry                         5%   *
Skeletal X-rays                  5%   *
Inpatient Care                   5%   *
ER                               5%   *
Neuropsych Testing               0%              2,300.00
Individual Counseling            4%   *
Case Mngt                        4%       M      2,940.00      1,470.00       1,470.00       1,470.00        1,470.00       1,470.00
Escitalopream                    5%   *
Restasis                         5%   *
Thyroid                          5%   *
Metoprolol                       5%   *
Diazepam                         5%   *
Trazadone                        5%   *
Hydromorphone                    5%   *
Acidophilus                      4%       M        53.22          53.22          53.22          53.22          53.22           53.22
Senna                            4%       M        66.07          66.07          66.07          66.07          66.07           66.07
Milk of Magnesia                 4%       M        12.49          12.49          12.49          12.49          12.49           12.49
Bisacodyl                        4%       M        17.97          17.97          17.97          17.97          17.97           17.97
Fleets Enema                     4%       M        11.67          11.67          11.67          11.67          11.67           11.67
Vit C                            4%       M        40.08          40.08          40.08          40.08          40.08           40.08
Aceta-minaphen                   4%       M         0.84           0.84           0.84           0.84           0.84            0.84
MAPAP                            5%   *
Q-Tussin                         4%       M          2.80          2.80           2.80           2.80            2.80           2.80
Albuterol                        5%   *
Diapers                          4%       M      1,764.17      1,764.17       1,764.17       1,764.17        1,764.17       1,764.17
Disp Underpads                   4%       M        101.47        101.47         101.47         101.47          101.47         101.47
Wipes                            4%       M         55.00         55.00          55.00          55.00           55.00          55.00
Skin Barrier Cream               4%       M        227.76        227.76         227.76         227.76          227.76         227.76
                                                       Appendix A: Proffered Items of Compensation for Joan Novarro                                       Page 2 of 2


                                                   Lump Sum
                                                  Compensation Compensation            Compensation     Compensation     Compensation     Compensation
  ITEMS OF COMPENSATION              G.R. *     M   Year 1       Year 2                  Year 3           Year 4           Year 5          Years 6-Life
                                                     2016         2017                    2018             2019             2020            2021-Life
Adult Bibs                            4%                79.96        79.96                   79.96            79.96            79.96              79.96
Nebulizer Kit                         4%    *
PT                                    4%    *
OT                                    4%    *
Seating Clinic                        4%    *
Transport: Seating Clinic             4%                     89.06             89.06            89.06            89.06            89.06           89.06
Assistive Tech Eval                   4%                    528.00
Transport: Assistive Tech Eval        4%                     92.02
Manual WC                             4%    *
WC Cushion                            4%    *
Geri Chair                            4%                    599.99
Hand Splints                          4%                     35.00             17.50            17.50            17.50            17.50           17.50
Positioninig Pillows/ Wedges          4%                     37.50             37.50            37.50            37.50            37.50           37.50
Reclining Shower Chair                4%                    895.00
Mattress Overlay/ Air Mattress        4%    *
Over Bed Table                        4%                     83.00            16.60            16.60            16.60            16.60            16.60
Residential Care                      4%        M       147,445.40       147,445.40       147,445.40       147,445.40       147,445.40       147,445.40
Lost Future Earnings                                     38,570.26
Pain and Suffering                                      250,000.00
Past Unreimbursable Expenses                            204,616.96
Medicaid Lien                                            65,123.15
Annual Totals                                           717,053.69       152,774.41       152,774.41       152,774.41       152,774.41       152,774.41
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, as conservator of the estate of Joan
Novarro, for Yr 1 life care expenses ($158,743.32), lost earnings ($38,570.26), pain and suffering ($250,000.00), and past unreimbursable
expenses ($204,616.96): $651,930.54.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner, as conservator of the estate
of Joan Novarro, and the State of Connecticut, as reimbursement of the State's Medicaid lien: $65,123.15.
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.
                                                    Appendix B: Attendant Care Awarded by Special Master for Joan Novarro                                    Page 1 of 1

                                                       Lump Sum
                                                      Compensation Compensation        Compensation     Compensation     Compensation        Compensation
  ITEM OF COMPENSATION               G.R.       M       Year 1       Year 2              Year 3           Year 4           Year 5             Years 6-Life
                                                         2016         2017                2018             2019             2020               2021-Life
Attendant Care Awarded by Special
Master                            4%            M         9,152.00          9,152.00         9,152.00         9,152.00         9,152.00          9,152.00

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, as conservator of the estate of
Joan Novarro, for Yr 1 attendant care expenses: $9,152.00.
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 "M" payable in twelve monthly installments totaling the annual amount indicated.
