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

******************** *
GARY ABDULLA,                        *
                                     *      No. 13-853V
                  Petitioner,        *      Special Master Christian J. Moran
                                     *
v.                                   *      Filed: February 13, 2015
                                     *
SECRETARY OF HEALTH                  *      Damages; decision based on proffer;
AND HUMAN SERVICES,                  *      influenza (“flu”) vaccine;
                                     *      shoulder bursitis; rotator cuff tear.
                  Respondent.        *
******************** *
Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for
petitioner;
Claudia B. Gangi, United States Dep’t of Justice, Washington, DC, for respondent.

                UNPUBLISHED DECISION AWARDING DAMAGES1

       On October 29, 2013, Gary Adbulla filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. §300aa—10 through 34, alleging that he
suffered bursitis in his left shoulder and a rotator cuff tear related to his receipt of
the influenza (“flu”) vaccine on October 12, 2011. On February 14, 2014, the
undersigned determined that petitioner is entitled to compensation under the
Vaccine Act.

       On February 12, 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 $177,250.43, representing life care expenses
           for Year 1 ($9,021.00), compensation for lost earnings ($13,129.58),
           past un-reimbursed expenses ($5,099.85), and pain and suffering
           ($150,000.00), in the form of a check payable to petitioner, Gary
           Abdulla.

        B. An amount sufficient to purchase the annuity contract described in
           section II.B. 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 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 1 of 5



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

___________________________________
                                    )
GARY ABDULLA,                       )
                                    )
                  Petitioner,       )
                                    )                 No. 12-853V
v.                                  )                 Special Master Moran
                                    )                 ECF
SECRETARY OF HEALTH AND             )
HUMAN SERVICES                      )
                                    )
                  Respondent,       )
___________________________________ )

                        RESPONDENT'S PROFFER ON DAMAGES

       Respondent submits the following recommendations regarding items of compensation to

be awarded to petitioner under the Vaccine Act.

I.     Items of Compensation

       A.      Life Care Items

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

petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of Gary

Abdulla’s future vaccine-injury related needs. All items identified in the agreed life care plan

dated December 3, 2014, are supported by the evidence and are illustrated by the chart entitled

Tab A: Summary of Life Care Items. 1 Respondent proffers Gary Abdulla (“petitioner”) should

be awarded all items of compensation that are set forth in the agreed life care plan and illustrated

by the chart attached as Tab A. Petitioner agrees. Respondent further proffers that the

appropriate growth rate for life care items of compensation should be four percent (4.0%) for


1
  The chart at Tab A illustrates the annual benefits as contained in 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.
               Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 2 of 5



non-medical items and six percent (6.0%) for medical items, compounded annually from the date

of judgment, as set forth in Tab B: Annuity Funding Portfolio. Petitioner agrees.

          B.       Lost Earnings

          The parties agree that based upon the evidence of record, Gary Abdulla has suffered a

past loss of earnings as a result of her vaccine-related injury. Therefore, respondent proffers that

the Court should award Gary Abdulla a lump sum of $13,129.58 for his 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 petitioner should be awarded $150,000.00 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 Unreimbursed Expenses

          Evidence supplied by petitioner documents his expenditure of past un-reimbursable

expenses related to his vaccine-related injury. Respondent proffers that the petitioner is entitled

to past un-reimbursed expenses in the amount of $5,099.85. Petitioner agrees.

          E.       Medicaid Lien

          Petitioner represents that there are no outstanding Medicaid liens related to his vaccine-

related injury.

          F.       Attorney’s Fees and Costs

          This proffer does not address final attorneys’ fees and costs. Petitioner is entitled to

reasonable attorneys’ fees and costs, to be determined at a later date upon petitioner filing

substantiating documentation.



                                                    2
          Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 3 of 5



       II.     Form of the Award

       The parties recommend that the compensation provided to petitioner for his future

medical care needs should be made through a combination of a one-time cash payment and

future annuity payments as described below, and request that the special master’s decision and

the Court’s judgment reflect the following items of compensation. 2

       Respondent proffers and petitioner agrees that an award of compensation include the

following elements:

       A. A lump sum payment of $177,250.43, representing life care expenses for Year 1

($9,021.00), compensation for lost earnings ($13,129.58), past un-reimbursed expenses

($5,099.85), and pain and suffering ($150,000.00), in the form of a check payable to petitioner.

       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, and paid to the life insurance company 4 from


2
  Should petitioner die prior to entry of judgment, respondent would oppose any award for
future medical expenses and future pain and suffering, and the parties reserve the right to move
the Court for appropriate relief.
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.
                                                 3
          Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 4 of 5



which the annuity will be purchased. 5 Compensation for Year Two (beginning on the first

anniversary of the date of judgment) and all subsequent payments shall be provided through

respondent’s purchase of an annuity, which annuity will make payments directly to the petitioner

only so long as he is alive at the time a particular payment is due. The “annual amounts” set

forth in Tab B describe the total year sum to be paid and do not require that the payment be made

in one single payment.

        The parties agree that petitioner is a competent adult and that no guardians/ conservators

of his estate will be required.

                1.      Growth Rates

        Respondent proffers that a four percent (4.0%) growth rate should be applied to all non-

medical items, and a six percent (6.0%) growth rate should be applied to all medical items. The

benefits illustrated in the chart at Tab B that are to be paid through annuity payments should

grow as follows: four percent (4.0%) for all non-medical items, and six percent (6.0%) for all

medical items, compounded annually from the date of judgment. Petitioner agrees.

                2.      Life-contingent Annuity

        Petitioner will continue to receive the annuity payments for future medical care from the

Life Insurance Company only so long as he is alive at the time that a particular payment is due.

Written notice to the Secretary of Health and Human Services and the Life Insurance Company

shall be made within twenty (20) days of petitioner’s death.

        III.    Summary of Recommended Payments Following Judgment

                A.      Lump Sum paid to Petitioner:           $177,250.43



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 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 5 of 5



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

             section II. B.



                                                  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

                                                  GLENN A. MACLEOD
                                                  Senior Trial Counsel
                                                  Torts Branch, Civil Division


                                                  /s/ Claudia B. Gangi
                                                  CLAUDIA B. GANGI
                                                  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) 616-4138



Dated: February 12, 2015




                                              5
                                            Case 1:13-vv-00853-UNJ Document 46-1 Filed 02/12/15 Page 1 of 2
        PET: Gary Abdulla                                                                                                                                             TAB A
        D.O.B. 10/26/1963

              DATE:      02/10/15
              TIME:     08:12 AM

        SUMMARY OF LIFE CARE ITEMS - AGREED LIFE CARE PLAN dated 12/03/2014

ITEM OF CARE           Insurance        Medical     Ancillary      Medical    Medications       Home Transportation      TOTALS          TOTALS                 TOTALS OF
                                          Care       Services    Equipment                    Services                    of Items        of Items        4.0% & 6.0% ITEMS
                                                                                                                       with a 6.0%     with a 4.0%             & APPLYING
                                                                                                                      Growth Rate     Growth Rate             THE GROWTH
GROWTH RATE                  6.0%          6.0%          6.0%         6.0%            6.0%       4.0%          4.0%                                                    RATE

 AGE          YEAR

   52           2015     1,000.00         160.00        360.00       261.78          318.27   6,158.95       761.73       2,100.05          6,920.68                       9,021
   53           2016     1,000.00         160.00        480.00        14.57          318.27   6,064.90       271.71       1,972.84          6,336.61                       8,681
   54           2017     1,000.00         160.00        462.00        14.57          318.27   6,064.90       271.71       1,954.84          6,336.61                       9,050
   55           2018     1,000.00         160.00        462.00        14.57          318.27   6,064.90       271.71       1,954.84          6,336.61                       9,456
   56           2019     1,000.00         160.00        462.00        14.57          318.27   6,064.90       271.71       1,954.84          6,336.61                       9,881
   57           2020     1,000.00          90.00        462.00        14.57          318.27   6,064.90       246.23       1,884.84          6,311.12                      10,201
   58           2021     1,000.00          90.00        462.00        14.57          318.27   6,064.90       246.23       1,884.84          6,311.12                      10,659
   59           2022     1,000.00          90.00        462.00        14.57          318.27   6,064.90       246.23       1,884.84          6,311.12                      11,139
   60           2023     1,000.00          90.00        462.00        14.57          318.27   6,064.90       246.23       1,884.84          6,311.12                      11,641
   61           2024     1,000.00          90.00        462.00        14.57          318.27   6,064.90       246.23       1,884.84          6,311.12                      12,167
   62           2025         0.00          90.00        462.00        14.57          318.27   6,064.90       246.23         884.84          6,311.12                      10,927
   63           2026         0.00          90.00        462.00        14.57          318.27   6,064.90       246.23         884.84          6,311.12                      11,395
   64           2027         0.00          90.00        462.00        14.57          318.27   6,064.90       246.23         884.84          6,311.12                      11,885
   65           2028         0.00         119.00        380.40       103.57          318.27   8,316.90       246.23         921.24          8,563.12                      16,223
   66           2029         0.00         119.00        380.40       237.07          318.27   8,316.90       246.23       1,054.74          8,563.12                      17,213
   67           2030         0.00         119.00        380.40        27.28          318.27   8,316.90       246.23         844.95          8,563.12                      17,447
   68           2031         0.00         119.00        380.40        27.28          318.27   8,316.90       246.23         844.95          8,563.12                      18,185
   69           2032         0.00         119.00        380.40        27.28          318.27   8,316.90       246.23         844.95          8,563.12                      18,955
   70           2033         0.00         119.00        380.40        27.28          318.27   8,316.90       246.23         844.95          8,563.12                      19,759
   71           2034         0.00         119.00        380.40        27.28          318.27   6,816.90       246.23         844.95          7,063.12                      17,437
   72           2035         0.00         119.00        380.40        27.28          318.27   6,504.90       218.73         844.95          6,723.62                      17,442
   73           2036         0.00         119.00        380.40        27.28          318.27   6,504.90       218.73         844.95          6,723.62                      18,194
   74           2037         0.00         119.00        380.40        27.28          318.27   6,504.90       218.73         844.95          6,723.62                      18,979
   75           2038         0.00         119.00        380.40        27.28          318.27   6,504.90       218.73         844.95          6,723.62                      19,799
   76           2039         0.00         119.00        380.40        27.28          318.27   6,504.90       218.73         844.95          6,723.62                      20,656
   77           2040         0.00         119.00        380.40        27.28          318.27   6,504.90       218.73         844.95          6,723.62                      21,551
   78           2041         0.00         119.00        380.40        27.28          318.27   6,504.90       218.73         844.95          6,723.62                      22,485

                            10,000         3,186        11,248        1,105           8,593   181,190         7,073         34,132           188,263                     400,430

                            4.50%         1.43%         5.06%        0.50%           3.86%     81.47%         3.18%                                                     100.00%

This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990                                                   Abdulla AGREED LC Plan 12 03 14 02 10 15 REV3




                                                                                                                                                                    PAGE 1
                          Case 1:13-vv-00853-UNJ Document 46-1 Filed 02/12/15 Page 2 of 2                                                    TAB    B




                                                  ANNUITY FUNDING PORTFOLIO
                                                             AGREED LIFE CARE PLAN dated 12/03/2014

                                                                  4.0 % & 6.0% GROWTH RATES

              DATE:           02/10/15
              TIME:           08:12 AM

Case No: 13-853V
PET: Gary Abdulla
D.O.B. 10/26/1963             Column 1         Column 2     Column 3      Column 4      Column 5    Column 6    Column 7       Column 8            Column 9

Funding Item                  TOTAL    ANNUAL   CASH &                   ANNUITY       ANNUITY     ANNUITY     ANNUITY        ANNUAL CUMULATIVE
Starting Amount            MEDICAL STRUCTURED ANNUITY                          896         1,221       6,564      11,195       SAFETY    SAFETY
Inflation Factor         CARE NEEDS SETTLEMENT   LUMP                       6.00%         6.00%       4.00%       4.00%       MARGIN    MARGIN
Beginning Year                  2015   BENEFITS  SUMS                         2016          2016        2016        2028          2015      2015
Ending Year                     2041                                         LIFE           2027        2027       LIFE           2041      2041

                                TOTAL               S/S   Cash &           Deferred     Deferred    Deferred    Deferred           Safety        Cum.Safety
 AGE          YEAR              NEEDS            TOTAL Lump Sums           Annuity      Annuity     Annuity     Annuity           Margin            Margin

   52          2015               9,021            9,021        9,021                                                                   0                    0
   53          2016               8,681            8,681                         896       1,221       6,564                            0                    0
   54          2017               9,050            9,071                         950       1,294       6,827                           20                   20
   55          2018               9,456            9,478                       1,007       1,372       7,100                           22                   43
   56          2019               9,881            9,905                       1,067       1,454       7,384                           24                   67
   57          2020              10,201           10,352                       1,131       1,541       7,679                          151                  218
   58          2021              10,659           10,819                       1,199       1,634       7,986                          160                  377
   59          2022              11,139           11,309                       1,271       1,732       8,306                          169                  547
   60          2023              11,641           11,821                       1,347       1,836       8,638                          180                  727
   61          2024              12,167           12,357                       1,428       1,946       8,983                          190                  917
   62          2025              10,927           12,919                       1,514       2,063       9,343                        1,993                2,910
   63          2026              11,395           13,508                       1,605       2,187       9,716                        2,112                5,022
   64          2027              11,885           14,124                       1,701       2,318      10,105                        2,239                7,261
   65          2028              16,223           12,998                       1,803                               11,195          -3,225                4,035
   66          2029              17,213           13,554                       1,911                               11,643          -3,659                  376
   67          2030              17,447           28,538    14,404             2,026                               12,109          11,092               11,468
   68          2031              18,185           14,740                       2,147                               12,593          -3,445                8,023
   69          2032              18,955           15,373                       2,276                               13,097          -3,583                4,440
   70          2033              19,759           16,033                       2,413                               13,620          -3,726                  714
   71          2034              17,437           16,723                       2,557                               14,165            -715                    0
   72          2035              17,442           17,443                       2,711                               14,732               1                    0
   73          2036              18,194           18,195                       2,874                               15,321               1                    1
   74          2037              18,979           18,980                       3,046                               15,934               1                    2
   75          2038              19,799           19,800                       3,229                               16,571               1                    2
   76          2039              20,656           20,657                       3,422                               17,234               1                    3
   77          2040              21,551           21,551                       3,628                               17,924               1                    4
   78          2041              22,485           22,486                       3,846                               18,640               1                    5

ITEMIZED TOTALS                 400,430          400,435       23,425         53,004      20,598      98,629      204,778                5                   5


                                                                                                                  Abdulla AGREED LC Plan 12 03 14 02 10 15 REV3

This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990




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