    In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                 Filed: February 28, 2017

* * * * * * * * * * * * *  *
DONNA RAMSAY,              *                           No. 11-549
                           *
         Petitioner,       *                           Special Master Sanders
                           *
v.                         *                           Decision on Proffer; Damages; Human
                           *                           Papillomavirus Vaccine (“HPV” or
SECRETARY OF HEALTH        *                           “Gardasil”); Systemic Juvenile Idiopathic
AND HUMAN SERVICES,        *                           Arthritis (“sJIA”); Juvenile Rheumatoid
                           *                           Arthritis (“JRA”).
         Respondent.       *
* * * * * * * * * * * * * *
Patricia L. O’Dell, Beasley, Allen, et al., P.C., Montgomery, AL, for Petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for Respondent.

                             DECISION AWARDING DAMAGES1

       On August 30, 2011, Tina Ramsay filed a petition on behalf of her minor daughter, Donna
Ramsay (“Petitioner”)2, pursuant to the National Vaccine Injury Compensation Program.3 42
U.S.C. §§ 300aa-1 to -34 (2012). Petitioner alleges that as a result of receiving human
papillomavirus (“HPV” or “Gardasil”) vaccines on March 19, 2008 and June 30, 2008, she suffered

1
  Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, 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 (2012)). As provided by
Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in
substance and is privileged or confidential; or (2) that includes medical files or similar files, the
disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule
18(b).
2
 Donna Ramsay, who has reached the age of majority since the petition was filed, has since been
substituted as Petitioner. See Order, filed December 16, 2015, at 1.
3
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
from systemic Juvenile Idiopathic Arthritis (“sJIA”)4. Petition (“Pet”) at 1.

        On December 18, 2015, Special Master Hamilton-Fieldman issued a Ruling on
Entitlement. ECF No. 67. She held that Petitioner’s theory and medical records satisfied the three-
prong test in Althen v. Secretary of Health and Human Services, 418 F.2d 1274, 1278 (Fed. Cir.
2005). Special Master Hamilton-Fieldman found that Petitioner had proven, by a preponderance
of the evidence, that her sJIA was caused by her HPV vaccinations. Id. at 2.

         On January 10, 2017, the case was reassigned to the undersigned. ECF No. 80. Petitioner
filed a status report on February 13, 2017, informing the Court that the parties were finalizing the
elements of an agreed upon Life Care plan. ECF No. 82.

        On February 27, 2017, Respondent filed a Proffer on Award of Compensation (“Proffer”).
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 Proffer, attached as Appendix A, the undersigned awards
       Petitioner:

      A.       A lump sum payment of $1,274,658.50 in the form of a check payable to
               Petitioner, Donna Ramsay; and

      B.       An amount sufficient to purchase the annuity described in section II. B. of the
               Proffer, Appendix A, paid to the life insurance company from which the
               annuity will be purchased (the “Life Insurance Company”).


        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT herewith.5

       IT IS SO ORDERED.

                                              s/Herbrina D. Sanders
                                              Herbrina D. Sanders
                                              Special Master




4
  Throughout the record, Petitioner’s sJIA has alternatively been referred to as juvenile
rheumatoid arthritis (“JRA”) and Still’s disease. These three terms refer to the same injury. See,
e.g., Transcript at 39-40.
5
 Pursuant to Vaccine Rule 11(a), entry of judgment is 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


DONNA RAMSAY,

                  Petitioner,

v.                                                              No. 11-549V
                                                                Special Master Sanders
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 Shelly Kinney, MSN, RN, CCM, CNLP, and

petitioner engaged Maria Vargas, MS, CRC, CLCP, to provide an estimation of Donna Ramsay’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 December 18, 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 Donna Ramsay, attached

hereto as Tab A. 1 Respondent proffers that Donna Ramsay 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, Donna Ramsay has suffered

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

proffers that Donna Ramsay should be awarded lost earnings as provided under the Vaccine Act,

42 U.S.C. § 300aa-15(a)(3)(B). Respondent proffers that the appropriate award for Donna

Ramsay’s lost earnings is $983,618.55. Petitioner agrees.

         C.       Pain and Suffering

         Respondent proffers that Donna Ramsay 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 her 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 $3,246.94. 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 Donna Ramsay 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

         A. A lump sum payment of $1,274,658.50, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($37,793.01), 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-
($983,618.55), pain and suffering ($250,000.00), and past unreimbursable expenses ($3,246.94),

in the form of a check payable to petitioner, Donna Ramsay.

        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,

Donna Ramsay, only so long as Donna Ramsay 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 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 she, Donna Ramsay, 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 Donna Ramsay’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, Donna Ramsay:                                        $1,274,658.50

         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,

                           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

                           HEATHER L. PEARLMAN
                           Assistant Director
                           Torts Branch, Civil Division

                           /s/Darryl R. Wishard
                           DARRYL R. WISHARD
                           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) 616-4357

Dated: February 27, 2017




                             -5-
                                      Appendix A: Items of Compensation for Donna Ramsay                               Page 1 of 1

                                                                           Lump Sum
                                                                          Compensation     Compensation
           ITEMS OF COMPENSATION                        G.R    *    M       Year 1          Years 2-Life
                                                                             2017            2018-Life
BCBS Blue Saver Bronze Premium                           5%         M         3,207.60          3,207.60
BCBS Blue Saver Bronze MOP                               5%                   7,150.00          7,150.00
Rheumatologist                                           5%     *
PCP                                                      5%     *
Labwork                                                  5%     *
PT Eval & PT                                             4%     *
Attendant Care                                           4%         M         25,550.00        25,550.00
Hand Splints                                             4%     *
Braces for Shoes                                         4%     *
Inserts for Shoes                                        4%     *
TENS                                                     4%                        50.00           10.00
Electrodes for TENS                                      4%                        72.00           72.00
Humira                                                   5%     *
Tramadol                                                 5%     *
Nexium                                                   5%     *
Voltaren Gel                                             5%     *
Mileage: Rheumatologist                                  4%                        9.12             9.12
Mileage: PCP                                             4%                       19.00            19.00
Mileage to UAB                                           4%                      235.29           235.29
Ancillary Services                                       4%                    1,500.00         1,500.00
Lost Future Earnings                                                         983,618.55
Pain and Suffering                                                           250,000.00
Past Unreimbursable Expenses                                                   3,246.94
Annual Totals                                                              1,274,658.50        37,753.01
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 ($37,793.01), lost earnings ($983,618.55), pain and suffering ($250,000.00), and past unreimbursable
expenses ($3,246.94): $1,274,658.50.
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.
