         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 16-1683V
                                     Filed: August 2, 2018
                                        UNPUBLISHED


    PATRICK D. MCALEESE,
                                                             Special Processing Unit (SPU);
                        Petitioner,                          Damages Decision Based on Proffer;
    v.                                                       Influenza (Flu) Vaccine; Guillain-
                                                             Barre Syndrome (GBS)
    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.


Thomas K. Brown, Brown Law Firm, LLP, Houston, TX), for petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

      On December 22, 2016, 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”). Petitioner alleges that he suffered from Guillain-Barre Syndrome
(“GBS”) as a result of an influenza (“flu”) vaccination administered on December 23,
2013. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.

       On August 1, 2017, a ruling on entitlement was issued, finding petitioner entitled
to compensation for GBS. On July 25, 2018, respondent filed a proffer on award of
compensation (“Proffer”) indicating petitioner should be awarded a lump sum payment
of $839.282.93 representing compensation for life care expenses expected to be
incurred during the first year after judgement ($17,375.32), lost earnings ($555,698.46),

1
  Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact 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).
pain and suffering (“$250,000.00), and past unreimbursable expenses ($16,209.15).
Proffer at 2-3. In the Proffer, respondent represented that petitioner agrees with the
proffered award. Based on the record as a whole, the undersigned finds that petitioner
is entitled to an award as stated in the Proffer.

       Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner:

               A lump sum of $839.282.93 representing compensation for life care
                expenses expected to be incurred during the first year after
                judgement ($17,375.32), lost earnings ($555,698.46), pain and
                suffering ($250,000.00), and past unreimbursable expenses
                ($16,209.15) in the form of a check payable to petitioner, Patrick D.
                McAleese; and

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

This amount represents compensation for all damages that would be available under §
300aa-15(a).

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

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          Chief Special Master




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


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


PATRICK D. MCALEESE,

                  Petitioner,

v.                                                              No. 16-1683V
                                                                Chief Special Master Dorsey
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, CNLP, to provide an

estimation of Patrick D. McAleese’s future vaccine-injury related needs. On July 27, 2017,

respondent filed a Rule 4(c) Report electing not to defend the case. On August 1, 2017, the

Chief Special Master issued a Decision finding that petitioner was entitled to compensation. For

the purposes of this proffer, the term “vaccine related” is as described in the respondent’s Rule

4(c) Report. All items of compensation identified in the life care plan are supported by the

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

D. McAleese, attached hereto as Tab A. 1 Respondent proffers that Patrick D. McAleese 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, Patrick D. McAleese has

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

respondent proffers that Patrick D. McAleese 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 Patrick D. McAleese’s lost earnings is $555,698.46. Petitioner agrees.

         C.       Pain and Suffering

         Respondent proffers that Patrick D. McAleese should be awarded $250,000.00 in actual

pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

         D.       Past Unreimbursable Expenses

         Evidence supplied by petitioner documents Patrick D. McAleese’s 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 $16,209.15.

II.      Form of the Award

         The parties recommend that the compensation provided to Patrick D. McAleese should

be made through a combination of lump sum payments and future annuity payments as described

below, and request that the Chief Special Master’s decision and the Court’s judgment award the

following: 2

         A. A lump sum payment of $839,282.93, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($17,375.32), lost earnings


         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-
($555,698.46), pain and suffering ($250,000.00), and past unreimbursable expenses

($16,209.15), in the form of a check payable to petitioner, Patrick D. McAleese.

        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,

Patrick D. McAleese, only so long as Patrick D. McAleese is alive at the time a particular

payment is due. At the Secretary’s sole discretion, the periodic payments may be provided to

petitioner in monthly, quarterly, annual or other installments. The “annual amounts” set forth in

the chart at Tab A describe only the total yearly sum to be paid to petitioner and do not require

that the payment be made in one annual installment.

        1.       Growth Rate

        Respondent proffers that a 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



        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 $250,000,000.00 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-
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, Patrick D. McAleese, 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 Patrick D. McAleese’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, Patrick D. McAleese:                                 $839,282.93

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


                                                      Respectfully submitted,

                                                      CHAD A. READLER
                                                      Acting Assistant Attorney General

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

                                                      CATHARINE E. REEVES
                                                      Deputy Director
                                                      Torts Branch, Civil Division




         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-
                       ALEXIS B. BABCOCK
                       Assistant Director
                       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 l46, Benjamin Franklin Station
                       Washington, D.C. 20044-0146
                       Direct dial: (202) 616-4138

Dated: July 25, 2018




                         -5-
                                          Appendix A: Items of Compensation for Patrick D. McAleese                                       Page 1 of 4

                                   Lump Sum
                                  Compensation Compensation    Compensation    Compensation   Compensation     Compensation    Compensation    Compensation
 ITEMS OF COMPENSATION   G.R. * M    Year 1     Years 2-7        Year 8         Years 9-10      Year 11         Years 12-14      Year 15        Years 16-20
                                      2018      2019-2024         2025          2026-2027        2028           2029-2031         2032          2033-2037
BCBS Premium             5%     M     2,712.00     2,712.00        2,712.00        2,712.00       2,712.00          2,712.00
BCBS MOP                 5%           3,000.00     3,000.00        3,000.00        3,000.00       3,000.00          3,000.00
Medigap F                5%     M                                                                                                   1,776.00       1,776.00
Medicare Part D          5%     M                                                                                                     856.92         856.92
Primary Care             5% *
Neurologist              5% *
Physiatry                4% *
Orthopedist              5% *
Psychiatry               5% *
EMG                      5% *
MRI                      5% *
Lab Testing              5% *
Gym Membership           4%             578.88       479.88          479.88          479.88           479.88         479.88          479.88             479.88
PT Eval                  4% *
PT                       4% *
Psycho-therapy           4% *
Reacher                  4%              25.15         5.03            5.03            5.03             5.03           5.03            5.03               5.03
Raised Toilet Seat       4%              80.02        16.00           16.00           16.00            16.00          16.00           16.00              16.00
Cane                     4%              40.48         8.10            8.10            8.10             8.10           8.10            8.10               8.10
Hand Held Shower         4%              37.58         7.52            7.52            7.52             7.52           7.52            7.52               7.52
Shower Chair             4%             206.80        41.36           41.36           41.36            41.36          41.36           41.36              41.36
Walker                   4%              99.29        19.86           19.86           19.86            19.86          19.86           19.86              19.86
Lift Chair               4% *           899.00                                                        899.00
Scooter                  4%           1,019.00                      1,019.00                                                        1,019.00            145.57
Scooter Batteries        4%              51.00        51.00            51.00          51.00          51.00            51.00            51.00             51.00
Scooter Maint            4%              87.34        87.34            87.34          87.34          87.34            87.34            87.34             87.34
Scooter Lift             4%           1,899.00                                                    1,899.00
Orthotics                4% *
Compression Stockings    4%              55.98        55.98           55.98           55.98            55.98          55.98           55.98              55.98
Lifeline                 4%             359.40       359.40          359.40          359.40           359.40         359.40          359.40             359.40
Baclofen                 5% *
                                                  Appendix A: Items of Compensation for Patrick D. McAleese                                               Page 2 of 4

                                         Lump Sum
                                        Compensation Compensation         Compensation    Compensation     Compensation    Compensation      Compensation     Compensation
 ITEMS OF COMPENSATION         G.R. * M    Year 1     Years 2-7             Year 8         Years 9-10        Year 11        Years 12-14        Year 15         Years 16-20
                                            2018      2019-2024              2025          2026-2027          2028          2029-2031           2032           2033-2037
Fluoxetine                     5% *
Ranitidine                     5% *
Home Health Care               4%     M     6,224.40     6,224.40              6,224.40         6,224.40        6,224.40         6,224.40        10,374.00           10,374.00
Lost Future Earnings                      555,698.46
Pain and Suffering                        250,000.00
Past Unreimbursable Expenses               16,209.15
Annual Totals                               839,282.93       13,067.87        14,086.87       13,067.87        15,865.87       13,067.87         15,157.39           14,283.96
                                         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 ($17,375.32), lost earnings ($555,698.46), pain and suffering ($250,000.00), and past unreimbursable
                                         expenses ($16,209.15): $839,282.93.
                                         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.
                                             Appendix A: Items of Compensation for Patrick D. McAleese   Page 3 of 4


                                      Compensation   Compensation   Compensation
 ITEMS OF COMPENSATION   G.R. * M       Year 21       Years 22-29   Years 30-Life
                                         2038         2039-2046      2047-Life
BCBS Premium             5%       M
BCBS MOP                 5%
Medigap F                5%       M       1,776.00       1,776.00       1,776.00
Medicare Part D          5%       M         856.92         856.92         856.92
Primary Care             5%   *
Neurologist              5%   *
Physiatry                4%   *
Orthopedist              5%   *
Psychiatry               5%   *
EMG                      5%   *
MRI                      5%   *
Lab Testing              5%   *
Gym Membership           4%                 479.88         479.88
PT Eval                  4%   *
PT                       4%   *
Psycho-therapy           4%   *
Reacher                  4%                   5.03           5.03           5.03
Raised Toilet Seat       4%                  16.00          16.00          16.00
Cane                     4%                   8.10           8.10           8.10
Hand Held Shower         4%                   7.52           7.52           7.52
Shower Chair             4%                  41.36          41.36          41.36
Walker                   4%                  19.86          19.86          19.86
Lift Chair               4%   *             649.00          64.90          64.90
Scooter                  4%                 145.57         145.57         145.57
Scooter Batteries        4%                  51.00          51.00          51.00
Scooter Maint            4%                  87.34          87.34          87.34
Scooter Lift             4%               1,899.00         189.90         189.90
Orthotics                4%   *
Compression Stockings    4%                  55.98          55.98          55.98
Lifeline                 4%                 359.40         359.40         359.40
Baclofen                 5%   *
                                                     Appendix A: Items of Compensation for Patrick D. McAleese                                               Page 4 of 4


                                            Compensation     Compensation    Compensation
 ITEMS OF COMPENSATION         G.R. * M       Year 21         Years 22-29    Years 30-Life
                                               2038           2039-2046       2047-Life
Fluoxetine                     5%   *
Ranitidine                     5%   *
Home Health Care               4%       M       10,374.00        10,374.00       14,523.60
Lost Future Earnings
Pain and Suffering
Past Unreimbursable Expenses
Annual Totals                                   16,831.96        14,538.76       18,208.48
                                            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 ($17,375.32), lost earnings ($555,698.46), pain and suffering ($250,000.00), and past unreimbursable
                                            expenses ($16,209.15): $839,282.93.
                                            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.
