         In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 16-1502V
                                         UNPUBLISHED


    DARRELL G. MAYO,                                          Chief Special Master Corcoran

                         Petitioner,                          Filed: November 21, 2019
    v.
                                                              Special Processing Unit (SPU);
    SECRETARY OF HEALTH AND                                   Damages Decision Based on Proffer;
    HUMAN SERVICES,                                           Influenza (Flu) Vaccine; Guillain-
                                                              Barre Syndrome (GBS)
                        Respondent.


Jesse James Johnson, Jr., Johnson Gardy & Teumer, Suffolk, VA, for petitioner.

Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.


                                DECISION AWARDING DAMAGES 1

       On November 14, 2016, Darrell Mayo 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 from Guillain-Barre Syndrome
(“GBS”) following the administration of an influenza (“flu”) vaccine on October 1, 2014.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.

        On October 30, 2018, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for GBS. On November 21, 2019, Respondent filed a proffer
on award of compensation (“Proffer”) indicating Petitioner should be awarded a lump
sum payment of $760,123.27, representing compensation for life care expenses
expected to be incurred during the first year after judgement ($18,849.19), lost earnings

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am
required 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). This means the ruling will be available to anyone with access to
the internet. 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, I agree that the identified material fits within this definition, I will redact such
material from public access.

2National 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).
($559,252.00), pain and suffering ($175,000.00), and unreimbursable expenses
($7,022.08). Proffer at 2-3. The Proffer also indicates that Petitioner should be
awarded an amount sufficient to purchase an annuity contract as set forth in Section
II.B. Proffer at 3. In the Proffer, Respondent represented that Petitioner agrees with the
proffered award. Id. Based on the record as a whole, I find 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 lump sum of $760.123.27 representing compensation for life care
                expenses expected to be incurred during the first year after
                judgement ($18,849.19), lost earnings ($559,252.00), pain and
                suffering ($175,000.00), and past unreimbursable expenses
                ($7,022.08) in the form of a check payable to petitioner, Darrell G.
                Mayo; and

            •   An amount sufficient to purchase the annuity contract described in
                the Proffer at Section II.B.

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. 3

IT IS SO ORDERED.


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




3 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.


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


 DARRELL G. MAYO,              )
                               )
           Petitioner,         )
 v.                            )                      No. 16-1502V
                               )                      Chief Special Master Corcoran
 SECRETARY OF HEALTH AND HUMAN )                      ECF
 SERVICES,                     )
                               )
           Respondent.         )
                               )

             RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

       On October 29, 2018, respondent filed a Rule 4(c) Report conceding that entitlement to

compensation was appropriate under the terms of the Vaccine Act. On October 30, 2018, the

court issued a Ruling on Entitlement, finding that petitioner was entitled to vaccine

compensation for his Guillain-Barré syndrome. Respondent now proffers the following

regarding the amount of compensation to be awarded.

I.     Items of Compensation

       A.      Life Care Items

       The parties engaged life care planner Linda Curtis, RN, MS, CCM, CNLCP, to provide

an estimation of Darrell G. Mayo’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. 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 Darrell G. Mayo,

attached hereto as Tab A. 1 Respondent proffers that Darrell G. Mayo should be awarded all


       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-
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, Darrell G. Mayo has suffered

past loss of earnings and will suffer a loss of earnings in the future. Therefore, respondent

proffers that Darrell G. Mayo 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 Darrell

G. Mayo’s lost earnings is $559,252.00. Petitioner agrees.

          C.     Pain and Suffering

          Respondent proffers that Darrell G. Mayo 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 his 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 $7,022.08. Petitioner agrees.

II.       Form of the Award

          The parties recommend that the compensation provided to petitioner should be made

through a combination of a lump sum payment and future annuity payments as described below,




                                                 -2-
and request that the Chief Special Master’s decision and the Court’s judgment award the

following: 2

       A. A lump sum payment of $760,123.27, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($18,849.19), lost earnings

($559,252.00), pain and suffering ($175,000.00), and past unreimbursable expenses ($7,022.08),

in the form of a check payable to petitioner, Darrell G. Mayo.

       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,

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




       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.
       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-
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,

Darrell G. Mayo, only so long as Darrell G. Mayo 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, Darrell G. Mayo, 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 Darrell G. Mayo’s death.

               3.      Guardianship

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




                                                 -4-
III.   Summary of Recommended Payments Following Judgment

       A.   Lump Sum paid to petitioner, Darrell G. Mayo: $760,123.27

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



                                                 Respectfully submitted,

                                                 JOSEPH H. HUNT
                                                 Assistant Attorney General

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

                                                 CATHARINE E. REEVES
                                                 Deputy Director
                                                 Torts Branch, Civil Division

                                                 GABRIELLE M. FIELDING
                                                 Assistant Director
                                                 Torts Branch, Civil Division

                                                 /s/Traci R. Patton
                                                 TRACI R. PATTON
                                                 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) 353-1589

Dated: November 21, 2019




                                           -5-
                                              Appendix A: Items of Compensation for Darell G. Mayo                                          Page 1 of 2

                                    Lump Sum
                                   Compensation Compensation     Compensation   Compensation   Compensation   Compensation   Compensation    Compensation
ITEMS OF COMPENSATION G.R.   *   M    Year 1      Years 2-3        Year 4         Years 5-6      Year 7         Years 8-9     Years 10-16    Years 17-Life
                                       2019      2020-2021          2022         2023-2024        2025         2026-2027      2028-2034       2035-Life
Insurance Premium      5%        M     1,806.00
Insurance MOP          5%              3,000.00
Medigap F              5%        M                  1,749.12         1,749.12       1,749.12       1,749.12       1,749.12       1,749.12         1,749.12
Medicare Part D        5%        M                  1,866.36         1,866.36       1,866.36       1,866.36       1,866.36       1,866.36         1,866.36
PCP                    5%    *
Neurologist            5%    *
Physiatry              5%    *
Ophthalmologist        5%    *
EMG                    5%    *
MRI                    5%    *
Lab Testing            5%    *
Gym                    3%                 480.00       480.00          480.00         480.00         480.00
Massage Therapy        3%                 960.00                       960.00                        960.00
Reacher                3%                  25.15         5.03            5.03           5.03           5.03           5.03           5.03             5.03
Raised Toilet Seat     3%                  68.54        13.71           13.71          13.71          13.71          13.71          13.71            13.71
Cane                   3%                  30.21         6.04            6.04           6.04           6.04           6.04           6.04             6.04
Walker                 3%                  74.98        15.00           15.00          15.00          15.00          15.00          15.00            15.00
Scooter                3%               1,929.00       275.57          275.57         275.57         275.57         275.57         275.57           275.57
Scooter Batteries      3%                  47.14        47.14           47.14          47.14          47.14          47.14          47.14            47.14
Scooter Maint          3%                 156.77       156.77          156.77         156.77         156.77         156.77         156.77           156.77
Scooter Lift           3%               1,899.00       189.90          189.90         189.90         189.90         189.90         189.90           189.90
Lift Chair             3%    *            499.00        24.90           24.90          24.90          24.90          24.90          24.90            24.90
Lifeline               3%                 359.40       359.40          359.40         359.40         359.40         359.40         359.40           359.40
Xarelto                5%    *
Cymbalta               5%    *
Cyclo-benzaprine       5%    *
Home Health Care       3%        M      3,120.00      3,120.00       3,120.00       3,120.00       6,240.00       6,240.00       6,240.00         9,360.00
Lawn Mowing            3%               1,820.00      1,820.00       1,820.00       1,820.00       1,820.00       1,820.00
Home Mods              0%               2,574.00
Lost Earnings                         559,252.00
Pain and Suffering                    175,000.00
                                                  Appendix A: Items of Compensation for Darell G. Mayo                                                    Page 2 of 2

                                      Lump Sum
                                     Compensation Compensation         Compensation     Compensation    Compensation     Compensation     Compensation     Compensation
ITEMS OF COMPENSATION G.R.     *   M    Year 1      Years 2-3            Year 4           Years 5-6       Year 7           Years 8-9       Years 10-16     Years 17-Life
                                         2019      2020-2021              2022           2023-2024         2025           2026-2027        2028-2034        2035-Life
Past Unreimbursable Expenses             7,022.08
Annual Totals                           760,123.27        10,128.94        11,088.94        10,128.94        14,208.94       12,768.94        10,948.94        14,068.94
                                     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 ($18,849.19), lost earnings ($559,252.00), pain and suffering ($175,000.00), and past unreimbursable
                                     expenses ($7,022.08): $760,123.27.
                                     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.
