    In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                     Filed: March 10, 2017
                            Reissued in Redacted Form: April 4, 2017

* * * * * * * * * * * * * * * * * * *
                                    *
D.S.,                               *                        PUBLISHED
                                    *
                  Petitioner,       *                        No. 10-77V
v.                                  *
                                    *                        Chief Special Master Dorsey
                                    *
SECRETARY OF HEALTH                 *                        Damages Award; Proffer; Human
AND HUMAN SERVICES,                 *                        Papillomavirus (“HPV”) Vaccine;
                                    *                        Guillain-Barré Syndrome (“GBS”);
                  Respondent.       *                        Miller-Fisher Variant;
                                    *                        Significant Aggravation.
* * * * * * * * * * * * * * * * * * *

Lisa Annette Roquemore, Law Office of Lisa A. Roquemore, Rancho Santa Margarita, CA for
petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, D.C., for respondent.

                            DECISION AWARDING DAMAGES1

        On February 12, 2010, D.S. (“petitioner”) filed a petition for compensation under the
National Vaccine Injury Compensation Program (“the Program”).2 Petition (ECF No. 1).
Petitioner alleged that as a result of receiving the first dose of the human papillomavirus (“HPV”)
vaccine (“Gardasil”) on or about February 21, 2007, she suffered from the Miller-Fisher variant of
Guillain-Barré Syndrome (“GBS”) in April 2007. Petition at 2.


1
  When this decision was originally filed the undersigned advised her intent 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 filed a timely motion
to redact certain information. This decision is being reissued with certain details in Tab A to the
proffer redacted. Except for those changes and this footnote, no other substantive changes have
been made. This decision will be posted on the court’s website with no further opportunity to
move for redaction.
2
 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42
U.S.C. § 300aa.


                                                 1
        On May 19, 2015, the undersigned issued a decision finding that petitioner was entitled to
compensation. Ruling on Entitlement (ECF No. 135). On March 10, 2017, respondent filed a
Proffer on Award of Compensation (“Proffer”). Proffer by HHS (ECF No. 11), attached hereto as
Appendix A. 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:

         (1) A lump sum payment of $1,622,715.00, representing compensation for life care
             expenses expected to be incurred during the first year after judgment
             ($165,398.00); lost earnings ($1,100,00.00); pain and suffering ($250,000.00); and
             past un-reimbursable expenses ($107,317.00), in the form of a check made
             payable to petitioner, D.S.; and

         (2) An amount sufficient to purchase the annuity contract described in section II.B.
             of the Proffer.

Proffer at 2, 4.

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


D.S.,

                  Petitioner,

v.                                                              No. 10-77V
                                                                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, and petitioner

engaged Liz Holakiewicz, RN, BSN, CCM, CNLCP, to provide an estimation of D.S.’s future

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

described in the Chief Special Master’s Ruling on Entitlement, filed May 19, 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 D.S., attached hereto as Tab A. 1

Respondent proffers that D.S. 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, D.S. has suffered past loss of

earnings and will suffer a loss of earnings in the future. Therefore, respondent proffers that D.S.

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 D.S.’s lost earnings is

$1,100,000.00. Petitioner agrees.

         C.       Pain and Suffering

         Respondent proffers that D.S. 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 $107,317.00. 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 D.S. 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 $1,622,715.00, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($165,398.00), 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-
($1,100,000.00), pain and suffering ($250,000.00), and past unreimbursable expenses

($107,317.00), in the form of a check payable to petitioner, D.S.

        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,

D.S., only so long as D.S. 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, D.S., 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 D.S.’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, D.S.:                             $1,622,715.00

         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: March 10, 2017




                          -5-
                                                      Appendix A: Items of Compensation for D.S.                                  Page 1 of 3

                                                     Lump Sum
                                                    Compensation   Compensation   Compensation   Compensation   Compensation
     ITEMS OF COMPENSATION           G.R.   *   M     Year 1         Year 2         Year 3         Year 4        Years 5-Life
                                                       2017           2018           2019           2020          2021-Life
Medicare Part B Premium              5%         M       4,179.60       4,179.60       4,179.60       4,179.60
Medicare Part B Deductible           5%     *
Medigap                              5%         M       6,894.36       6,894.36       6,894.36       6,894.36       2,421.12
Medicare Part D                      5%         M      10,686.29      10,686.29      10,686.29      10,686.29      10,686.29
Neurology                            5%     *
Opthalmologist                       5%     *
Physical Medicine & Rehabilitation   5%     *
ENT                                  5%     *
Audiology Testing                    5%     *
                                     4%     *
Dental                               5%                   202.00         202.00         202.00         202.00         202.00
Orthodontic                          5%                 2,895.00
                                     5%     *
                                     5%                30,000.00
                                     4%                   675.00
                                     4%                 3,337.50       1,668.75       1,668.75       1,668.75       1,668.75
Diagnostic Testing                   4%     *
                                     5%     *
                                     5%     *
                                     5%     *
                                     5%     *
                                     4%                   117.60         117.60         117.60         117.60         117.60
                                     4%                   435.54         435.54         435.54         435.54         435.54
                                     5%     *
                                     5%     *
                                     5%     *
                                     5%         M         641.58         641.58         641.58         641.58         641.58
                                     5%     *
                                     5%     *
                                     5%         M         315.24         315.24         315.24         315.24         315.24
                                     5%     *

                                                                                                                                Tab A
                                                       Appendix A: Items of Compensation for D.S.                                Page 2 of 3

                                                      Lump Sum
                                                     Compensation   Compensation   Compensation   Compensation   Compensation
      ITEMS OF COMPENSATION           G.R.   *   M     Year 1         Year 2         Year 3         Year 4        Years 5-Life
                                                        2017           2018           2019           2020          2021-Life
                                      5%     *
                                      5%     *
Anti-Inflammatory Anti-oxidant Supp   4%                   400.00         400.00         400.00         400.00         400.00
Case Mngt                             4%         M       1,200.00       1,200.00       1,200.00       1,200.00       1,200.00
                                      4%         M      52,560.00      52,560.00      52,560.00      52,560.00      52,560.00
Housekeeping                          4%         M       4,464.00       4,464.00       4,464.00       4,464.00       4,464.00
                                      4%         M         899.40         899.40         899.40         899.40         899.40
Palliative Care:
                                      4%         M       2,241.02       2,241.02       2,241.02       2,241.02       2,241.02
Home Mods                             0%                38,134.12
                                      4%                   250.00         250.00         250.00         250.00         250.00
                                      4%                   370.00          74.00          74.00          74.00          74.00
Computer Software                     0%                 1,120.00
                                      0%                   744.00
Hot Packs                             4%                   129.95          43.32          43.32          43.32          43.32
                                      4%                   123.88         123.88         123.88         123.88         123.88
Tissues                               4%                   301.49         301.49         301.49         301.49         301.49
Eye Drops                             4%                   236.88         236.88         236.88         236.88         236.88
Magnifiers & Chair Mount              4%                   101.00           4.40           4.40           4.40           4.40
                                      4%                    30.00          10.00          10.00          10.00          10.00
Medical Alert Bracelet                4%                    40.00           8.00           8.00           8.00           8.00
Electric Toothbrush                   4%                    59.55          11.91          11.91          11.91          11.91
Waterpik                              4%                    74.10          14.82          14.82          14.82          14.82
                                      4%     *
                                      4%                    28.50           5.70           5.70           5.70           5.70
                                      4%                    59.96          59.96          59.96          59.96          59.96
Sleep Mask                            4%                    19.98          19.98          19.98          19.98          19.98
Shower Chair                          4%                   285.10          57.02          57.02          57.02          57.02
                                      4%                    39.98          39.98          39.98          39.98          39.98
Swim Goggles                          4%                    17.95          17.95          17.95          17.95          17.95
Hair Dryer Stand                      4%                    20.13           2.88           2.88           2.88           2.88
                                                                  Appendix A: Items of Compensation for D.S.                                      Page 3 of 3

                                                                Lump Sum
                                                               Compensation     Compensation     Compensation     Compensation    Compensation
      ITEMS OF COMPENSATION                  G.R.   *    M        Year 1          Year 2           Year 3           Year 4         Years 5-Life
                                                                   2017            2018             2019             2020           2021-Life
Gel Shoe Inserts                              4%                       49.90          49.90            49.90            49.90             49.90
OT Eval                                       4%                      250.00          50.00            50.00            50.00             50.00
Mileage: Dr.                                  4%                       44.94          44.94            44.94            44.94             44.94
Mileage: Dr.                                  4%                       32.10          32.10            32.10            32.10             32.10
Mileage: ENT                                  4%                       96.30          96.30            96.30            96.30             96.30
Mileage:                                      4%                      417.30         417.30           417.30           417.30            417.30
Mileage:                                      4%                        7.49            7.49             7.49             7.49             7.49
Mileage: Ophthalmology                        4%                       10.91          10.91            10.91            10.91             10.91
Mileage:                                      4%                      158.36         158.36           158.36           158.36            158.36
Lost Earnings                                                   1,100,000.00
Pain and Suffering                                                250,000.00
Past Unreimbursable Expenses                                      107,317.00
Annual Totals                                                   1,622,715.00        89,054.85        89,054.85        89,054.85      80,402.01
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 ($165,398.00), lost earnings ($1,100,000.00), pain and suffering ($250,000.00), and past unreimbursable
expenses ($107,317.00): $1,622,715.00.
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.
