        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                        Case No. 13-122V
                                      Filed: March 21, 2016
                                      (Not to be published)

* * * * * * * * * * * * * * * * * * *
ANDREW RODD,                               *
                                           *
                    Petitioner,            *      Decision on Damages;
v.                                         *      Influenza (Flu) Vaccine; Overlap
                                           *      Syndrome; Sjogren’s Syndrome;
SECRETARY OF HEALTH                        *      Polymyositis; Inflammatory Arthritis
AND HUMAN SERVICES,                        *
                                           *
                    Respondent.            *
                                           *
* * * * * * * * * * * * * * * * * * *
Lawrence R. Cohan, Anapol Schwartz, et al., Philadelphia, PA, for petitioner.
Gordon E. Shemin, U.S. Department of Justice, Washington, DC for respondent.

                                     DECISION ON DAMAGES1

Gowen, Special Master:

        On February 15, 2013, Andrew Rodd (“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 “the Program”). Petitioner alleged that as a result of receiving the influenza
(“flu”) vaccine on September 14, 2011, he developed numbness and tingling in his hands due to
the aggravation of an underlying, asymptomatic carpal tunnel syndrome, and that over the course
of weeks after the vaccine, his condition evolved into symptomatic polyarthritis, polymyositis,
inflammatory arthritis, and Sjogren’s syndrome. See Petition at Preamble. The undersigned
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  Because this unpublished ruling contains a reasoned explanation for the action in this case, I intend to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, 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, 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 (2012).

                                                     1
issues a Ruling on Entitlement finding petitioner entitled to compensation based on an injury
caused-in-fact by a covered vaccine on December 11, 2015.

        On March 18, 2016, respondent filed a Proffer on an award of compensation, indicating
that petitioner has agreed to compensation in the amount of $871,362.80, 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 shall 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 March 21, 2016, and he confirmed petitioner’s agreement with the proposed
compensation amounts. 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 $871,362.80 in the form of a check payable to petitioner,
           Andrew Rodd; 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


ANDREW RODD,

                  Petitioner,

v.                                                              No. 13-122V
                                                                Special Master Gowen
SECRETARY OF HEALTH AND                                         ECF
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, MS, CCM, CNLCP, and

petitioner engaged Roberta Hurley, to provide an estimation of Andrew Rodd’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 November 13, 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 Andrew Rodd, attached hereto as Tab

A. 1 Respondent proffers that Andrew Rodd should be awarded all items of compensation set

forth in the 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 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-
          B.      Lost Earnings

          The parties agree that based upon the evidence of record, Andrew Rodd will suffer a loss

of earnings in the future. Therefore, respondent proffers that Andrew Rodd 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 Andrew Rodd’s lost earnings is $561,772.81. Petitioner

agrees.

          C.      Pain and Suffering

          Respondent proffers that Andrew Rodd should be awarded $232,625.79 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 $6,675.40. Petitioner agrees.

          E.      Medicaid Lien

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

II.       Form of the Award

          The parties recommend that the compensation provided to Andrew Rodd 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 $871,362.80, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($70,288.80), lost earnings

($561,772.81), pain and suffering ($232,625.79), and past unreimbursable expenses ($6,675.40),

in the form of a check payable to petitioner, Andrew Rodd.

        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,

Andrew Rodd, only so long as Andrew Rodd 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.



        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-
         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 he, Andrew Rodd, 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 Andrew Rodd’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, Andrew Rodd:                                         $ 871,362.80

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




         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-
                              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

                              LINDA S. RENZI
                              Senior Trial Counsel
                              Torts Branch, Civil Division

                              s/ Gordon E. Shemin
                              GORDON E. SHEMIN
                              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) 616-4280

Dated: March 18, 2016




                        -5-
                                              Appendix A: Items of Compensation for Andrew Rodd                                Page 1 of 2

                                       Lump Sum
                                      Compensation Compensation   Compensation   Compensation   Compensation   Compensation
  ITEMS OF COMPENSATION      G.R. * M   Year 1      Years 2-5       Year 6         Year 7        Years 8-10    Years 11-Life
                                          2016      2017-2020        2021           2022         2023-2025      2026-Life
Medicare Part B Premium      5%     M     1,461.60     1,461.60       1,461.60       1,461.60
Medicare Part B Deductible   5% *
Medigap C                    5%     M     3,376.32     3,376.32       3,376.32       3,376.32       1,889.76       1,889.76
Medicare Part D              5%     M     1,047.70     1,047.70       1,047.70       1,047.70       1,047.70       1,047.70
Medrol Methyl-prednisolone   5% *
Diclofenac                   5% *
Lab Testing                  5% *
Bone Density Test            5% *
IV Rituximab                 5% *
Dr. Horowitz                 5% *
Rheuma-tologist              5% *
Opthal-mologist              5% *
Clinical Social Worker       4% *
Scooter                      4%           1,829.00       261.29         261.29         261.29         261.29         261.29
Scooter Batteries            4%             174.86       174.86         174.86         174.86         174.86         174.86
Scooter Maint                4%             156.77       156.77         156.77         156.77         156.77         156.77
Scooter Lift                 4%           1,895.00       189.50         189.50         189.50         189.50         189.50
Life Alert System            4%     M       376.35       359.40         359.40         359.40         359.40
Tempuer-pedic Mattress       4%             569.74        56.97          56.97          56.97          56.97          56.97
Wedge                        4%              65.16        13.03          13.03          13.03          13.03          13.03
Home Bed Assist Handrail     0%              66.17
Adaptive Clothing            4%             150.00        50.00          50.00          50.00          50.00          50.00
Grab Bar                     0%              17.72
Raised Toilet Seat           4%              51.41        10.28          10.28          10.28          10.28          10.28
Lift Chair                   4%             562.00        56.20          56.20          56.20          56.20          56.20
Adaptive Equip               4%             200.00                      100.00
Assisted Living              4%     M                                                                             54,000.00
Home Care                    4%     M    36,500.00    36,500.00      36,500.00      36,500.00      36,500.00
Ancillary Services           4%     M     3,900.00     3,900.00       3,900.00       3,900.00       3,900.00
Fitness Club                 4%     M       899.00       840.00         840.00         840.00         840.00
Bathtub                      0%          11,000.00
                                                             Appendix A: Items of Compensation for Andrew Rodd                                         Page 2 of 2

                                               Lump Sum
                                              Compensation Compensation              Compensation     Compensation     Compensation    Compensation
  ITEMS OF COMPENSATION              G.R. * M    Year 1     Years 2-5                  Year 6           Year 7          Years 8-10     Years 11-Life
                                                  2016      2017-2020                   2021             2022           2023-2025       2026-Life
Stair Lift                           0%           5,990.00
Lost Earnings                                   561,772.81
Pain and Suffering                              232,625.79
Past Unreimbursable Expenses                      6,675.40
Annual Totals                                         871,362.80        48,453.92        48,553.92        48,453.92        45,505.76      57,906.36
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 ($70,288.80), lost earnings ($561,772.81), pain and suffering ($232,625.79), and past unreimbursable
expenses ($6,675.40): $871,362.80.
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.
