       In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                    Case No. 14-68V
                                  Filed: April 27, 2015
                                  (Not to be published)

***********************
JODY RADIS,                             *
                                        *
                    Petitioner,         *       Decision on Damages; Influenza
v.                                      *       Vaccine; Rotator Cuff Tendinosis.
                                        *
SECRETARY OF HEALTH                     *
AND HUMAN SERVICES,                     *
                                        *
                    Respondent.         *
                                        *
***********************
Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA for petitioner.
Justine E.Walters, United States Department of Justice, Washington, DC for respondent.

                                DECISION ON DAMAGES1

Gowen, Special Master:

       On January 27, 2014, Jody Radis (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2
[the “Vaccine Act” or “Program”] alleging that as a result of receiving an influenza (“flu”)
vaccine on October 26, 2011, she suffered from rotator cuff tendinosis in her left shoulder.
1
  Because this unpublished ruling contains a reasoned explanation for the action in this case, I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, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as
amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has
14 days to identify and move to delete 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 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 (2006).

                                                 1
Petition at Intro. On April 28, 2014, respondent filed a Rule 4(c) Report [“Respondent’s
Report”] in which she conceded that petitioner is entitled to compensation. Resp’t Rep. at
1-2. The undersigned issued a Ruling on Entitlement on April 29, 2014, finding petitioner
is entitled to compensation based on an injury caused-in-fact by a covered vaccine.

        On April 24, 2015, respondent filed a Proffer on an award of compensation,
indicating that petitioner has agreed to compensation in the amount of $162,339.85, to be
paid to petitioner only, for life care expenses expected to be incurred during the first year
after judgment, lost earnings, pain and suffering, and past unreimburseable expenses.
Petitioner will also receive an amount sufficient to purchase an annuity contract described
in section II(B) of the Proffer, attached hereto as Appendix A. Petitioner’s counsel was
contacted by the undersigned’s chambers on April 27, 2015 and he confirmed petitioner’s
agreement with the proposed compensation amounts. Accordingly, pursuant to the terms
in the attached Proffer, 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 $162,339.85 in the form of a check payable to
          petitioner, Jody Radis; and

       2. An amount sufficient to purchase an annuity contract to provide the
          benefits described in section II, paragraph B of the Proffer, to be paid to a
          life insurance company meeting the criteria described in footnote 4.

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

IT IS SO ORDERED.

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




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


                                                2
                IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                               OFFICE OF SPECIAL MASTERS
____________________________________
                                              )
JODY RADIS,                                   )
                                              )
               Petitioner,                    )      No. 14-68V
                                              )      Special Master Gowen
       v.                                     )      ECF
                                              )
SECRETARY OF HEALTH AND                       )
HUMAN SERVICES,                               )
                                              )
               Respondent.                    )
                                              )

             RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I.     Items of Compensation

       A.      Life Care Items

       Respondent engaged life care planner Linda Curtis, RN, MSN, CCM, CNCLP, and

petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of Jody Radis’s

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

as described in respondent’s Rule 4(c) Report filed on April 28, 2014, conceding entitlement in

this case. All items of compensation identified in the agreed upon life care plan are supported by

the evidence, and are illustrated by the chart entitled Appendix A: Items of Compensation for Jody

Radis, attached hereto as Tab A. 1 Respondent proffers that Jody Radis should be awarded all

items of compensation set forth in the agreed upon life care plan and illustrated by the chart

attached at Tab A. Petitioner agrees.



1
  The chart at Tab A illustrates the annual benefits provided by the agreed upon 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.
       B.      Lost Earnings

       The parties agree that based upon the evidence of record, Jody Radis has suffered a past

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

proffers that Jody Radis 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 Jody Radis’s

lost earnings is $53,903.81. Petitioner agrees.

       C.      Pain and Suffering

       Respondent proffers that Jody Radis should be awarded $100,000.00 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 Jody Radis’s expenditure of past

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

should be awarded past unreimbursable expenses in the amount of $2,667.17. Petitioner agrees.

       E.      Medicaid Lien

       Petitioner represents that there are no Medicaid liens outstanding against her.

II.    Form of the Award

       The parties recommend that the compensation provided to Jody Radis should be made

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

and request that the Special Master’s decision and the Court’s judgment award the following: 2




2
  Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future medical
expenses, future lost earnings, and future pain and suffering.

                                                  -2-
       A.      A lump sum payment of $162,339.85, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($5,768.87), lost earnings

($53,903.81), pain and suffering ($100,000.00), and past unreimbursable expenses ($2,667.17), in

the form of a check payable to petitioner, Jody Radis.

       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

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,

Jody Radis, only so long as Jody Radis is alive at the time a particular payment is due. At the

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-
Secretary’s sole discretion, the periodic payments may be provided to petitioner in monthly,

quarterly, annual or other installments. The “annual amounts” set forth in the chart at Tab A

describe only the total yearly sum to be paid to petitioner and do not require that the payment be

made in one annual installment.

       1.      Growth Rate

       Respondent proffers that a four percent (4%) growth rate should be applied to all non-

medical life care items, and a five percent (5%) growth rate should be applied to all medical life

care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid through annuity

payments should grow as follows: four percent (4%) compounded annually from the date of

judgment for non-medical items, and five percent (5%) compounded annually from the date of

judgment for medical items. Petitioner agrees.

       2.      Life-contingent annuity

       Petitioner will continue to receive the annuity payments from the Life Insurance Company

only so long as she, Jody Radis, 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 Jody Radis’s death.

       3.      Guardianship

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

III.   Summary of Recommended Payments Following Judgment

       A.      Lump Sum paid to petitioner, Jody Radis:                              $ 162,339.85
       B.      An amount sufficient to purchase the annuity contract described
               above in section II. B.




                                                 -4-
                        Respectfully submitted,

                        BENJAMIN C. MIZER
                        Principal Deputy Assistant Attorney General

                        RUPA BHATTACHARYYA
                        Director
                        Torts Branch, Civil Division

                        VINCENT J. MATANOSKI
                        Deputy Director
                        Torts Branch, Civil Division

                        HEATHER L. PEARLMAN
                        Senior Trial Attorney
                        Torts Branch, Civil Division

                         s/ Justine Walters
                        JUSTINE WALTERS
                        Trial Attorney
                        Torts Branch, Civil Division
                        U.S. Department of Justice
                        P.O. Box 146
                        Benjamin Franklin Station
                        Washington, D.C. 20044-0146
                        Telephone: (202) 307-6393

Dated: April 24, 2015




                          -5-
TAB A
                                                    Appendix A: Items of Compensation for Jody Radis

                                                                                                                                               Page 1 of 4

                                      Lump Sum
                                     Compensation Compensation   Compensation   Compensation   Compensation     Compensation   Compensation   Compensation
  ITEMS OF COMPENSATION        G.R M    Year 1      Year 2        Years 3-5       Year 6         Year 7           Year 8         Year 9         Year 10
                                         2015        2016         2017-2019        2020           2021             2022           2023           2024
Primary Care                   5%           80.00        80.00          80.00         80.00          80.00            80.00          80.00           80.00
Orthopedist                    5%          250.00                                    250.00
Pain Specialist                5%          325.00       250.00         175.00        175.00            175.00         175.00         175.00         175.00
X-ray of Shoulder              5%          106.00
Tylenol Extra Strength         4%          116.65       116.65         116.65         116.65           116.65         116.65         116.65         116.65
Tylenol PM                     4%           72.93        72.93          72.93          72.93            72.93          72.93          72.93          72.93
PT                             4%          983.86                                     983.86
OT Eval                        0%          235.14
Psychologist                   4%          360.00                                     360.00
Shower Bench                   4%          139.87                                                                     139.87
Hand Held Shower               4%           33.31                                                                      33.31
Grab Bars                      0%          209.79
Rubber Bath Mat                4%           14.99        14.99          14.99          14.99            14.99          14.99          14.99          14.99
Adaptive Equip                 4%          200.00       100.00                                         100.00
Heating Pad                    4%           59.50                                      59.50
Folding Step Stool             4%           59.99
TENS                           4%           51.99        26.00          26.00          26.00          26.00            26.00          26.00          26.00
TENS Batteries & Electrodes    4%           19.28        19.28          19.28          19.28          19.28            19.28          19.28          19.28
Home Care                      4% M      2,028.00     2,028.00       2,028.00       2,028.00       2,028.00         2,028.00       2,028.00       4,056.00
Mileage: PCP                   4%             4.59        4.59           4.59           4.59           4.59             4.59           4.59           4.59
Mileage: Orthopedist           4%           21.30                                      21.30
Mileage: Pain Specialist       4%           68.64        45.76          22.88          22.88            22.88          22.88          22.88          22.88
Mileage: PT                    4%           26.56                                      26.56
Mileage: OT                    0%             4.43
Mileage: Counselor             4%             3.50                                      3.50
Mileage: Drivers Eval          0%           20.60
Drivers Eval                   0%          250.00
Car Mods                       4%           22.95                                      22.95
Lost Future Earnings                    53,903.81
Pain and Suffering                     100,000.00
Past Unreimbursable Expenses             2,667.17
                                                    Appendix A: Items of Compensation for Jody Radis

                                                                                                                                                        Page 2 of 4

                                 Lump Sum
                                Compensation Compensation          Compensation     Compensation    Compensation     Compensation     Compensation     Compensation
  ITEMS OF COMPENSATION   G.R M   Year 1       Year 2               Years 3-5         Year 6          Year 7           Year 8           Year 9           Year 10
                                   2015         2016                2017-2019          2020            2021             2022             2023             2024
Annual Totals                       162,339.85         2,758.20         2,560.32         4,287.99         2,660.32         2,733.50         2,560.32        4,588.32
                                 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 ($5,768.87), lost earnings ($53,903.81), pain and suffering ($100,000.00), and past unreimbursable
                                 expenses ($2,667.17): $162,339.85.
                                 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.
                                                        Appendix A: Items of Compensation for Jody Radis

                                                                                                                     Page 3 of 4


                                        Compensation   Compensation   Compensation    Compensation   Compensation
  ITEMS OF COMPENSATION        G.R M      Year 11        Year 12       Years 13-14      Year 15      Years 16-Life
                                           2025           2026         2027-2028         2029         2030-Life
Primary Care                   5%              80.00          80.00           80.00          80.00           80.00
Orthopedist                    5%            250.00           50.00           50.00          50.00           50.00
Pain Specialist                5%            175.00         175.00           175.00        175.00           175.00
X-ray of Shoulder              5%            106.00           10.60           10.60          10.60           10.60
Tylenol Extra Strength         4%            116.65         116.65           116.65        116.65           116.65
Tylenol PM                     4%              72.93          72.93           72.93          72.93           72.93
PT                             4%            983.86         196.77           196.77        196.77           196.77
OT Eval                        0%
Psychologist                   4%
Shower Bench                   4%                                                           139.87          19.98
Hand Held Shower               4%                                                            33.31           4.76
Grab Bars                      0%
Rubber Bath Mat                4%              14.99          14.99          14.99           14.99          14.99
Adaptive Equip                 4%                            100.00
Heating Pad                    4%              59.50          11.90          11.90           11.90          11.90
Folding Step Stool             4%              59.99           6.00           6.00            6.00           6.00
TENS                           4%              26.00          26.00          26.00           26.00          26.00
TENS Batteries & Electrodes    4%              19.28          19.28          19.28           19.28          19.28
Home Care                      4%   M       4,056.00       4,056.00       4,056.00        4,056.00       4,056.00
Mileage: PCP                   4%               4.59           4.59           4.59            4.59           4.59
Mileage: Orthopedist           4%              21.30           4.26           4.26            4.26           4.26
Mileage: Pain Specialist       4%              22.88          22.88          22.88           22.88          22.88
Mileage: PT                    4%              26.56           5.31           5.31            5.31           5.31
Mileage: OT                    0%
Mileage: Counselor             4%
Mileage: Drivers Eval          0%
Drivers Eval                   0%
Car Mods                       4%              22.95           4.59           4.59            4.59           4.59
Lost Future Earnings
Pain and Suffering
Past Unreimbursable Expenses
                                                     Appendix A: Items of Compensation for Jody Radis

                                                                                                                                                         Page 4 of 4


                                  Compensation     Compensation     Compensation     Compensation     Compensation
  ITEMS OF COMPENSATION   G.R M     Year 11          Year 12         Years 13-14       Year 15        Years 16-Life
                                     2025             2026           2027-2028          2029           2030-Life
Annual Totals                           6,118.48         4,977.75         4,877.75        5,050.93         4,902.49
                                  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 ($5,768.87), lost earnings ($53,903.81), pain and suffering ($100,000.00), and past unreimbursable
                                  expenses ($2,667.17): $162,339.85.
                                  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.
