       In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                     No. 11-0063V
                                 (E-Filed: July 3, 2013)

* * * * * * * * * * * * *
ANDREA BOTAN, as the mother     *                 UNPUBLISHED
and legal representative of her *
minor daughter, EVELYN BOTAN    *                 Special Master
                                *                 Hamilton-Fieldman
              Petitioners,      *
                                *                 DTaP Vaccine; Table Encephalopathy;
       v.                       *                 Respondent’s Concession; Finding of
                                *                 Entitlement; Damages Decision Based
SECRETARY OF HEALTH             *                 on Proffer
AND HUMAN SERVICES,             *
                                *
              Respondent.       *
                                *
* * * * * * * * * * * * *

Curtis R. Webb, Twin Falls, ID, for Petitioner

Alexis B. Babcock, Washington, DC, for respondent

                         DECISION AWARDING DAMAGES 1

      On January 28, 2011, Petitioner, Andrea Botan, filed a petition on behalf of her
minor child seeking compensation under the National Vaccine Injury Compensation
Program (Athe Vaccine Program@) for a vaccine-related injury. 2



       1
          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)), requires that the court post
this decision on its website. In accordance with Vaccine Rule 18(b), Petitioner has 14
days to identify and move to delete medical or other information, that satisfies the criteria
in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for
redaction must include a proposed redacted decision. If, upon review, the undersigned
agrees that the identified material fits within the requirements of that provision, the
undersigned will delete such material from public access.


                                              1
      Respondent has conceded that Petitioner is entitled to compensation due to Evelyn
Botan suffering a diphtheria, tetanus, acellular pertussis (DTaP) Vaccine Table
presumptive injury of encephalopathy.

      Informed by Respondent’s concession that an award of damages is appropriate, the
undersigned finds that Petitioner is entitled to compensation under the Vaccine Program.

        On June 26, 2013, Respondent filed a Proffer detailing Respondent’s
recommendations of Damages (Proffer). In the Proffer Respondent represented that
Petitioner had agreed to all of the terms set forth therein. Based on the record as a whole,
the undersigned finds the Proffer reasonable and that Petitioner is entitled to an award as
stated in the Proffer. Pursuant to the terms stated in the attached Proffer, the court awards
Petitioner:

       1.     A lump sum payment of $551,303.00, representing the life care expenses
              for Year One ($321,303.00), and the net present value of a portion of the
              expenses for Year 2030 ($230,000.00), in the form of a check payable to
              The Broadway National Bank for the benefit of the Evelyn Botan U.S.
              Grantor Reversionary Trust;

       2.     A lump sum payment of $900,300.00, representing compensation for lost
              future earnings ($650,300.00) and pain and suffering ($250,000.00), in the
              form of a check payable to the guardian/conservator of Evelyn Botan’s
              estate.   No payments shall be made until Petitioner satisfies the
              requirements set forth in the attached proffer with respect to the
              guardianship/conservatorship of the estate of Evelyn Botan 3;

       3.     A lump sum payment of $7,000.00, representing compensation for past un-
              reimbursed expenses, in the form of a check payable to Petitioner;

       4.      A lump sum payment of $31,490.11, representing compensation for
              satisfaction of the State of Texas Medicaid lien, payable jointly to the
              guardian/conservator and:

2
  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 (2006) (“Vaccine Act” or “Act”). All
citations in this decision to individual sections of the Act are to 42 U.S.C.A. § 300aa.
3
 The Proffer requires that Petitioner appoint a guardian/conservator of Evelyn Botan’s
estate, as duly authorized under the laws of the State of Texas. As of the date of this
decision, nothing in the record indicates that this requirement has been fulfilled.

                                             2
                                    TMHP/Medicaid
                                  TPL/Tort Department
                                    P.O. Box 202948
                                 Austin, TX 78720-2948
                                 Attn: Tort Receivables

       5.     An amount sufficient to purchase an annuity contract(s), subject to the
              conditions described in Section II. E. of the attached Proffer, 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 as Appendix A at 1-2]
              paid to the life insurance company(ies) from which the annuity(ies) will be
              purchased. Compensation for Year Two (beginning on the first anniversary
              of the date of judgment) and all subsequent payments shall be provided
              through Respondent’s purchase of an annuity, which annuity will make
              payments directly to the Evelyn Botan U.S. Grantor Reversionary Trust,
              only so long as Evelyn Botan is alive at the time a particular payment is
              due. The “annual amounts” set forth in Tab B [attached hereto as Appendix
              A at 3-4] describe the total year sum to be paid to the Trust and do not
              require that the payment be made in one single payment.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the
clerk of the court is directed to enter judgment herewith. 4

       IT IS SO ORDERED.

                                                 s/Lisa Hamilton-Fieldman
                                                 Lisa Hamilton-Fieldman
                                                 Special Master




       4
           Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties=
joint filing of notice renouncing the right to seek review.


                                             3
                IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                        OFFICE OF THE SPECIAL MASTERS


                                               )
ANDREA BOTAN, as the mother and                )
legal representative of her minor              )
daughter, EVELYN BOTAN                         )      No. 11-063V
                                               )
                Petitioner.                    )      Special Master Hamilton-Fieldman
                                               )
       v.                                      )
                                               )
SECRETARY OF HEALTH AND                        )
HUMAN SERVICES,                                )
                                               )
                Respondent.                    )
                                               )


                 RESPONDENT'S RECOMMENDATIONS ON DAMAGES

       Respondent submits the following recommendations regarding items of compensation to

be awarded to petitioner under the Vaccine Act.

I.     ITEMS OF COMPENSATION

       A.      LIFE CARE ITEMS

       The parties engaged life care planners Laura E. Fox, MSN, BSN, RN, CDDN, CLCP for

the Respondent and Terry K. Arnold, RN, CDMS, CRRN, CLCP, CNLCP for the petitioner, to

provide an estimation of Evelyn Botan’s future vaccine-injury related needs. All items identified

in the agreed life care plan are supported by the evidence and are illustrated by the chart entitled

TAB A: Summary of Life Care Items.1


1
       The chart at Tab A illustrates the annual benefits as contained in 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.
Respondent proffers Evelyn Botan should be awarded all items of compensation that are set forth

in the agreed life care plan and illustrated by the chart attached as Tab A. Petitioner agrees.

Respondent further proffers that the appropriate growth rate for life care items of compensation

should be four percent (4.0%) for non-medical items and six percent (6.0%) for medical items,

compounded annually from the date of judgment, as set forth in Tab B: Annuity Funding

Portfolio. Petitioner agrees.

          B.     LOST FUTURE EARNINGS

          The parties agree that based upon the evidence in the record, Evelyn Botan will not be

able to engage in full-time gainful employment. Therefore, respondent proffers that Evelyn

Botan should be awarded lost future earnings as provided under the Vaccine Act, 42 U.S.C. §

300aa-15(a)(3)(B). Respondent proffers that the appropriate award for Evelyn Botan’s lost future

earnings is $650,300.00. Petitioner agrees.

          C.     PAIN AND SUFFERING

          Respondent proffers that Evelyn Botan should be awarded $250,000.00 in actual and

projected pain and suffering. This amount reflects that the 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 UNREIMBURSED EXPENSES

          Evidence supplied by petitioners document their expenditure of past unreimbursable

expenses related to Evelyn Botan’s vaccine-related injury. Respondent proffers that the

petitioner is entitled to past un-reimbursed expenses in the amount of $7,000.00. Petitioner

agrees.


                                                  2
       E.       MEDICAID LIEN

       Respondent proffers that Evelyn Botan should be awarded funds to satisfy the State of

Texas Medicaid lien in the amount of $31,490.11, which represents full satisfaction of any right

of subrogation, assignment, claim, lien or cause of action the State of Texas may have against

any individual as a result of any Medicaid payments the State of Texas has made to or on behalf

of Evelyn Botan from the date of her eligibility for benefits through the date of judgment in this

case as a result of his vaccine-related injury suffered on or about December 3, 2009, under Title

XIX of the Social Security Act.

       F.       ATTORNEY’S FEES AND COSTS

       This proffer does not address final attorneys’ fees and costs. Petitioner is entitled to

reasonable attorneys’ fees and costs, to be determined at a later date upon petitioner filing

substantiating documentation.

II.    FORM OF THE AWARD

       The parties recommend that the compensation provided to Evelyn Botan for her future

medical care needs should be made to a U. S. Grantor Reversionary Trust established for the

benefit of Evelyn Botan with payments made to the Trust through a combination of a one time

cash payment, annuity lump sum payments and future annuity payments as described below, and

request that the special master’s decision and the Court’s judgment reflect the following items of

compensation.

       Respondent proffers and petitioner agrees that an award of compensation include the

following elements:


                                                  3
       A.      A lump sum payment of $321,303.00, representing life care expenses for Year 1

and $230,000.00 representing the net present value of a portion of the expenses for Year 2030

($551,303.00) shall be awarded in the form of a check payable to The Broadway National Bank

for the benefit of the Evelyn Botan U. S. Grantor Reversionary Trust.

       B. A lump sum payment of $900,300.00, representing compensation for lost future

earnings ($650,300.00) and pain and suffering ($250,000.00), in the form of a check payable to

the guardian/conservator of Evelyn Botan’s estate. No payments shall be made until petitioner

satisfies the requirements set forth below with respect to the guardianship/conservatorship of the

estate of Evelyn Botan.

       C. A lump sum payment of $7,000.00, representing compensation for past un-reimbursed

expenses shall be awarded in the form of a check payable to petitioner.

       D. A lump sum payment of $31,490.11, representing compensation for satisfaction of the

State of Texas Medicaid lien, payable jointly to the guardian/conservator and

                                            TMHP/Medicaid
                                          TPL/Tort Department
                                            P.O. Box 202948
                                         Austin, TX 78720-2948
                                         Attn: Tort Receivables

       The guardian/conservator agrees to endorse this payment to the State of Texas.

       E. An amount sufficient to purchase an annuity contract,2 subject to the conditions

described below, that will provide payments for the life care items contained in the life care plan,



       2
         In respondent’s discretion, respondent may purchase one or more annuity contracts
from one or more life insurance companies.

                                                 4
as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company3 from

which the annuity will be purchased.4 Compensation for Year Two (beginning on the first

anniversary of the date of judgment) and all subsequent payments shall be provided through

respondent’s purchase of an annuity, which annuity will make payments directly to the Evelyn

Botan U. S. Grantor Reversionary Trust, only so long as Evelyn Botan is alive at the time a




       3
          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.
       4
         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.
                                                 5
particular payment is due. Payments will be provided to the Trust in annual or other

installments. The “annual amounts” set forth in Tab B describe the total year sum to be paid to

the Trust and do not require that the payment be made in one single payment.

          Petitioner represents that John Eaton presently is, or within 90 days of the date of

judgment will become, duly authorized to serve as guardian/conservator of Evelyn Botan’s estate

under the laws of the State of Texas. No payments pursuant to paragraph II(B) of this Proffer

shall be made until petitioner provides the Secretary with documentation establishing Mr.

Eaton’s appointment as guardian/conservator of Evelyn Botan’s estate. If Mr. Eaton is not

authorized by a court of competent jurisdiction to serve as guardian/conservator of the estate of

Evelyn Botan at the time a payment pursuant paragraph II(B) to this Proffer is to be made, any

such payment shall be paid to the party or parties appointed by a court of competent jurisdiction

to serve as guardian/conservator of the estate of Evelyn Botan upon submission of written

documentation of such appointment to the Secretary.

                 1.      Growth Rates

          Respondent proffers that a four percent (4.0%) growth rate should be applied to all non-

medical life care items and a six percent (6.0%) growth rate should be applied to all medical life

care items. The benefits illustrated in the chart at Tab B that are to be paid through annuity

payments should grow as follows: four percent (4.0%) compounded annually from the date of

judgment and six percent (6.0%) compounded annually from the date of judgment. Petitioner

agrees.




                                                    6
               2.     Life-contingent Annuity

       The Trust will continue to receive the annuity payments for future medical care from the

Life Insurance Company only so long as Evelyn Botan is alive at the time that a particular

payment is due. Written notice to the Secretary of Health and Human Services and the Life

Insurance Company shall be made within twenty (20) days of Evelyn Botan’s death.




                                                7
III.   SUMMARY OF RECOMMENDED PAYMENTS FOLLOWING JUDGMENT

       A.   Lump Sum paid to the Guardian/Conservator of the Estate of Evelyn Botan:

            $900,300.00;

       B.   Reimbursement of Medicaid Lien paid to Guardian/Conservator: $31,490.11;

       C.   Lump Sum paid to Petitioner: $7,000.00;

       D.   Lump Sum paid to Broadway National Bank for the benefit of the Evelyn Botan

            U. S. Grantor Reversionary Trust in the amount of: $551,303.00; and

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

            II. E.

                                                 Respectfully submitted,

                                                 STUART F. DELERY
                                                 Acting Assistant Attorney General

                                                 RUPA BHATTACHARYYA
                                                 Director
                                                 Torts Branch, Civil Division

                                                 VINCENT J. MATANOSKI
                                                 Deputy Director
                                                 Torts Branch, Civil Division

                                                 GLENN A. MACLEOD
                                                 Senior Trial Counsel
                                                 Torts Branch, Civil Division




                                            8
                           /s/ Alexis B. Babcock

                           ALEXIS B. BABCOCK
                           Trial Attorney
                           Torts Branch, Civil Division
                           U.S. Department of Justice
                           P.O. Box 146, Ben Franklin Station
                           Washington, DC 20044-0146
                           Tel.: (202) 616-7678


Dated: June 26, 2013




                       9
