        In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                         Case No. 09-293V
                                     Filed: November 28, 2016
                                       (Not to be published)

* * * * * * * * * * * * * * * * * * *
RACHAEL MCCULLOCH as parent and *
legal guardian of A.M.,               *
                                      *
                     Petitioner,      *       Decision on Damages;
v.                                    *       Human Papillomavirus Vaccine
                                      *       (“HPV”/”Gardasil”); Autoimmune
SECRETARY OF HEALTH                   *       Limbic Encephalitis; Intractable Epilepsy;
AND HUMAN SERVICES,                   *
                                      *
                     Respondent.      *
                                      *
* * * * * * * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC for respondent.

                                      DECISION ON DAMAGES1

Gowen, Special Master:

        On May 11, 2009, Rachael McCulloch (“petitioner”) filed a petition for compensation on
behalf of her minor child, A.M., pursuant to the National Vaccine Injury Compensation Program,
42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act” or “the Program”). Petitioner alleged that as a
result of receiving a Human Papillomavirus (“HPV”/”Gardasil”) vaccine on August 16, 2007,
A.M. developed a severe neurological injury. On December 7, 2009, petitioner filed an
1
  Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to
post this ruling 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). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B),
the disclosure of which would constitute an unwarranted invasion of privacy. Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I
agree that the identified material fits within this definition, I will delete such material from public access.
2
 National 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).

                                                       1
Amended Petition alleging that the HPV vaccine caused A.M. to develop encephalitis,
intractable epilepsy, and subsequent developmental delays. See Amended Petition at Preamble.
The undersigned issued a Ruling on Entitlement finding petitioner entitled to compensation
based on an injury caused-in-fact by a covered vaccine on May 22, 2015.

        On November 28, 2016, respondent filed a Proffer on an award of compensation,
indicating that petitioner has agreed to compensation as follows: $1,055,056.01 for A.M.’s lost
earnings; $250,000.00 in actual and projected pain and suffering; $41,216.61 in past
unreimbursable expenses; and $58,535.37 to satisfy a State of Florida Medicaid lien. See
Proffer, filed Nov. 28, 2016, at 2-3.

       Pursuant to the terms in the attached Proffer, attached hereto as Appendix A, the
undersigned awards petitioner the following compensation for all damages that would be
available under 42 U.S.C. § 300aa-15(a):

        1. A lump sum payment of $1,428,188.00, representing compensation for lost
           earnings ($1,055,056.01), pain and suffering ($250,000.00), and life care expenses
           for Year One ($123,131.99), in the form of a check payable to petitioner as
           guardian of A.M. for the benefit of A.M.;

        2. A lump sum payment of $41,216.61, representing compensation for past
           unreimbursable expenses, in the form of a check payable to petitioner;

        3. A lump sum payment of $58,535.37, representing compensation for satisfaction
           of the State of Florida Medicaid lien, payable jointly to petitioner and

                          Florida Agency for Health Care Administration
                           Florida Medicaid Casualty Recovery Program
                                            P.O. 12188
                                    Tallahassee, FL 32317-2188
                                     Attn: Marquis Grissom
                                         Case No: 604902

        4. An amount sufficient to purchase the annuity contract described in section II,
            paragraph D of the Proffer, paid to the life insurance company from which the
            annuity will be purchased.

        Proffer at 3-5.

        The clerk of the court is directed to enter judgment in accordance with this decision.3

3
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.


                                                    2
IT IS SO ORDERED.


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




                            3
                   IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                           OFFICE OF SPECIAL MASTERS

*************************************
RACHAEL MCCULLOCH, parent of        *
A.M.,                               *
                                    *
                  Petitioner,       *                        No. 09-293V
                                    *                        SPECIAL MASTER
v.                                  *                        THOMAS L. GOWEN
                                    *
SECRETARY OF HEALTH AND             *
HUMAN SERVICES,                     *
                                    *
                  Respondent.       *
*************************************

             RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I.     Items of Compensation1

       A.      Life Care Items

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

petitioner engaged Maureen Clancy, RN, BSN, CNLCP, to provide an estimation of A.M.’s

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

is as described in the Special Master’s Ruling on Entitlement, filed May 22, 2015. 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 A.M., attached hereto as Tab A.2




       1  Should A.M. die prior to the 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
         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-
Respondent proffers that A.M. should be awarded all items of compensation set forth in the life

care plan and illustrated by the chart attached at Tab A.3 Petitioner agrees.

       B.      Lost Earnings

       The parties agree that based upon the evidence of record, A.M. has suffered a loss of

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

proffers that A.M. should be awarded full lost earnings as provided under the Vaccine Act, 42

U.S.C. § 300aa-15(a)(3)(B). Respondent proffers that the appropriate award for A.M.'s lost

earnings is $1,055,056.01. Petitioner agrees.

       C.      Pain and Suffering

       Respondent proffers that A.M. 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 her expenditure of past unreimbursable

expenses related to A.M.'s vaccine-related injury. Respondent proffers that petitioner should be

awarded past unreimbursable expenses in the amount of $41,216.61. Petitioner agrees.

       E.      Medicaid Lien

       Respondent proffers that A.M. should be awarded funds to satisfy a State of Florida lien

in the amount of $58,535.37, which represents full satisfaction of any right of subrogation,



       3
          The parties have no objection to the proffered award of damages. Assuming the Special
Master issues a damages decision in conformity with this proffer, the parties intend to waive
their right to seek review of such damages decision, recognizing that respondent reserves her
right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Special Master’s May 22, 2015,
decision finding petitioner entitled to an award under the Vaccine Act.

                                                -2-
assignment, claim, lien, or cause of action the State of Florida may have against any individual

as a result of any Medicaid payments the State of Florida has made to or on behalf of A.M. 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 June 8, 2007 and/or August 16, 2007, under Title

XIX of the Social Security Act.

II.    Form of the Award

       The parties recommend that the compensation provided to A.M. 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:

       A.      A lump sum payment of $1,428,188.00, representing compensation for lost

earnings ($1,055,056.01), pain and suffering ($250,000.00), and life care expenses for Year One

($123,131.99), in the form of a check payable to petitioner as guardian of A.M., for the benefit of

A.M. Petitioner has been appointed as the guardian of A.M.'s estate under the State law of

Florida. If petitioner becomes unable or is removed as the guardian of the estate of A.M., any

such payment shall be made to the party or parties appointed by a court of competent jurisdiction

to serve as guardian(s)/conservator(s) of the estate of A.M. upon submission of written

documentation of such appointment to the Secretary.

       B.      A lump sum payment of $41,216.61, representing compensation for past

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

       C.      A lump sum payment of $58,535.37, representing compensation for satisfaction

of the State of Florida Medicaid lien, payable jointly to petitioner and




                                                  -3-
                         Florida Agency for Health Care Administration
                          Florida Medicaid Casualty Recovery Program
                                          P.O. 12188
                                  Tallahassee, FL 32317-2188
                                    Attn: Marquis Grissom
                                       Case No: 604902

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

       D.      An amount sufficient to purchase the 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 attached hereto, paid to the life insurance company5 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

guardian of the estate of A.M., only so long as A.M. is alive at the time a particular payment is


  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-
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 six percent (6%) 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 six percent (6%) 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 A.M. 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 A.M.’s death.

               3.      Guardianship

       Petitioner has filed documentation with the Court establishing that she has been

appointed as the guardian of A.M.’s estate. If petitioner becomes unable or is removed as the

guardian of the estate of A.M., any such payment shall be made to the party or parties appointed

by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of A.M.

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




                                                 -5-
III.   Summary of Recommended Payments Following Judgment

       A.   Lump sum paid to petitioner as court-appointed
            guardian of A.M.’s estate:                                 $ 1,428,188.00

       B.   Paid to petitioner:                                        $      41,216.61

       C.   Medicaid Lien:                                             $      58,535.37

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



                                                 Respectfully submitted,

                                                 BENJAMIN C. MIZER
                                                 Principal Deputy Assistant Attorney General

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

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

                                                 HEATHER L. PEARLMAN
                                                 Assistant Director
                                                 Torts Branch, Civil Division

                                                 /s/ Debra A. Filteau Begley
                                                 DEBRA A. FILTEAU BEGLEY
                                                 Trial Attorney
                                                 Torts Branch, Civil Division
                                                 U.S. Department of Justice
                                                 P.O. Box 146
                                                 Benjamin Franklin Station
                                                 Washington, D.C. 20044-0146
                                                 Phone: (202) 616-4181
Dated: November 28, 2016




                                           -6-
                                                      Appendix A: Items of Compensation for A.M.                                                Page 1 of 4
                                        Lump Sum
       ITEMS OF                        Compensation   Compensation   Compensation   Compensation   Compensation   Compensation   Compensation     Compensation
     COMPENSATION         G.R. *   M     Year 1        Years 2-4       Year 5         Year 6         Year 7         Year 8        Years 9-10       Years 11-27
                                          2016         2017-2019        2020           2021           2022           2023         2024-2025        2026-2042
BCBS Gold Premium         6%       M       3,436.80       3,436.80
BCBS Gold MOP             6%               4,000.00       4,000.00
BCBS FL Premium           6%       M                                     5,017.92       5,017.92       5,017.92       5,017.92       5,017.92          5,017.92
BCBS FL MOP               6%                                             2,000.00       2,000.00       2,000.00       2,000.00       2,000.00          2,000.00
Medicare Part B Premium   6%       M
Medigap                   6%       M
Medicare Part D           6%       M
PCP                       6%   *
Neurologist               6%   *
Urologist                 6%   *
Gastroenterologist        6%   *
Specialists               6%   *
Dentist                   6%                 100.00         100.00         100.00         100.00         100.00         100.00         100.00
ER                        6%   *
Hospitalization           6%   *
MRI                       6%   *
X-Rays                    6%   *
Diastat                   6%   *
Cloazepate Dipotassium    6%   *
Escitalopram Oxalate      6%   *
Vimpat                    6%   *
Lamotrigine 200mg         6%   *
Lamotrigine 100mg         6%   *
Topiramate                6%   *
Omeprazole                6%   *
PT                        4%
ST                        4%
Shower Chair              4%                 130.97                                       130.97
Hand Held Shower          4%                  47.53                                        47.53
Grab Bars                 4%                 209.79
WC                        4%   *
Incontinence Pants        4%       M         460.67         460.67         460.67         460.67         460.67         460.67         460.67
                                                                                                                        McCulloch, 09-293V, Tab A
                                                                                                                                       Page 1 of 4
                                                             Appendix A: Items of Compensation for A.M.                                                            Page 2 of 4
                                             Lump Sum
       ITEMS OF                             Compensation     Compensation     Compensation     Compensation     Compensation     Compensation     Compensation       Compensation
     COMPENSATION             G.R. *   M      Year 1          Years 2-4         Year 5           Year 6           Year 7           Year 8          Years 9-10         Years 11-27
                                               2016           2017-2019          2020             2021             2022             2023           2024-2025          2026-2042
Chux                          4%       M         180.00            180.00          180.00           180.00           180.00           180.00            180.00
Hand Sanitizer                4%                  35.88             35.88           35.88            35.88            35.88            35.88             35.88
Waterproof Mattress Pad       4%                  80.00             80.00           80.00            80.00            80.00            80.00             80.00
YMCA                          4%
Music Therapy                 4%       M           780.00           780.00           780.00
Day Program                   4%       M         7,269.60         7,269.60         7,269.60         7,269.60         7,269.60         7,269.60         7,269.60
Live-in Home Care             4%       M       105,120.00       105,120.00       105,120.00       105,120.00       105,120.00       105,120.00       105,120.00
Seizure Activity Monitor      4%                   899.00                                             899.00
Intermediate Care Facility    4%       M                                                                                                                                136,875.00
Mileage: PCP                  4%                      4.26             4.26             4.26             4.26             4.26             4.26             4.26
Mileage: Neurologist          4%                      6.38             6.38             6.38             6.38             4.26             4.26             4.26
Mileage: Urologist            4%                      2.36             2.36             2.36             2.36             2.36             2.36             2.36
Mileage: Gastroenterologist   4%                      2.13             2.13             2.13                                               2.13
Mileage: Specialists          4%
Mileage: Music Therapy        4%                   366.62           366.62           366.62
Lost Earnings                                1,055,056.01
Pain and Suffering                             250,000.00
Past Unreimb. Expenses                          41,216.61
Medicaid Lien                                   58,535.37
Annual Totals                                1,527,939.98       121,844.70       121,425.82       121,354.57       120,274.95       120,277.08       120,274.95         143,892.92
                                           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 guardian of the
                                           estate of A.M., for Year 1 life care expenses ($123,131.99), lost earnings ($1,055,056.01), and pain and
                                           suffering ($250,000.00): $1,428,188.00.
                                           As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for past
                                           unreimbursable expenses: $41,216.61.
                                           As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
                                           petitioner and the State of Florida, as reimbursement of the state's Medicaid lien: $58,535.37.
                                           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.

                                                                                                                                         McCulloch, 09-293V, Tab A
                                                                                                                                                        Page 2 of 4
                                                      Appendix A: Items of Compensation for A.M.                      Page 3 of 4

       ITEMS OF                        Compensation   Compensation
     COMPENSATION         G.R. *   M    Years 28-43   Years 44-Life
                                        2043-2058      2059-Life
BCBS Gold Premium         6%       M
BCBS Gold MOP             6%
BCBS FL Premium           6%       M
BCBS FL MOP               6%
Medicare Part B Premium   6%       M       1,461.60       1,461.60
Medigap                   6%       M       4,488.00       2,268.00
Medicare Part D           6%       M       4,241.07       4,241.07
PCP                       6%   *
Neurologist               6%   *
Urologist                 6%   *
Gastroenterologist        6%   *
Specialists               6%   *
Dentist                   6%
ER                        6%   *
Hospitalization           6%   *
MRI                       6%   *
X-Rays                    6%   *
Diastat                   6%   *
Cloazepate Dipotassium    6%   *
Escitalopram Oxalate      6%   *
Vimpat                    6%   *
Lamotrigine 200mg         6%   *
Lamotrigine 100mg         6%   *
Topiramate                6%   *
Omeprazole                6%   *
PT                        4%
ST                        4%
Shower Chair              4%
Hand Held Shower          4%
Grab Bars                 4%
WC                        4%   *
Incontinence Pants        4%       M
                                                                                                   McCulloch, 09-293V, Tab A
                                                                                                                  Page 3 of 4
                                                             Appendix A: Items of Compensation for A.M.                                                         Page 4 of 4

       ITEMS OF                            Compensation     Compensation
     COMPENSATION             G.R. *   M    Years 28-43     Years 44-Life
                                            2043-2058        2059-Life
Chux                          4%       M
Hand Sanitizer                4%
Waterproof Mattress Pad       4%
YMCA                          4%
Music Therapy                 4%       M
Day Program                   4%       M
Live-in Home Care             4%       M
Seizure Activity Monitor      4%
Intermediate Care Facility    4%       M      136,875.00       136,875.00
Mileage: PCP                  4%
Mileage: Neurologist          4%
Mileage: Urologist            4%
Mileage: Gastroenterologist   4%
Mileage: Specialists          4%
Mileage: Music Therapy        4%
Lost Earnings
Pain and Suffering
Past Unreimb. Expenses
Medicaid Lien
Annual Totals                                 147,065.67       144,845.67
                                           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 guardian of the
                                           estate of A.M., for Year 1 life care expenses ($123,131.99), lost earnings ($1,055,056.01), and pain and
                                           suffering ($250,000.00): $1,428,188.00.
                                           As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for past
                                           unreimbursable expenses: $41,216.61.
                                           As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
                                           petitioner and the State of Florida, as reimbursement of the state's Medicaid lien: $58,535.37.
                                           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.

                                                                                                                                         McCulloch, 09-293V, Tab A
                                                                                                                                                        Page 4 of 4
