     In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                           Filed: March 5, 2018

* * * * * * * * * * * * * * * * * * *                                     UNPUBLISHED
KRISTINA GARRISON,                  *
                                    *                                     No. 14-762V
                  Petitioner,       *
v.                                  *                                     Special Master Gowen
                                    *
SECRETARY OF HEALTH                 *                                     Decision on Damages;
AND HUMAN SERVICES,                 *                                     Trivalent Influenza Vaccine;
                                    *                                     Narcolepsy; Cataplexy; Hypocretin.
                  Respondent.       *
* * * * * * * * * * * * * * * * * * *

Curtis R. Webb, Twin Falls, ID, for petitioner.
Ryan D. Pyles, United States Department of Justice, Washington, DC for respondent.

                                         DECISION ON DAMAGES1

       On August 22, 2014, Kristina Garrison (“petitioner” or “Ms. Garrison”) filed a petition
pursuant to the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 et seq. (2006)
(“Vaccine Act”). Petitioner alleges that as a result of receiving a trivalent influenza (“flu”)
vaccination on October 28, 2011, she developed narcolepsy and cataplexy. See Petition at ¶ 1, 2
(ECF No. 1). Petitioner also alleges that she has, and will continue to suffer, effects of her
narcolepsy and cataplexy. Id. at ¶ 16.

        On April 2, 2015, respondent filed a Rule 4(c) Report and a motion for a ruling on the
record, stating that while she “agrees that petitioner’s appropriate diagnosis is narcolepsy with
cataplexy,” she “concludes that there is insufficient scientific evidence to support a causal
relationship between the influenza vaccine and narcolepsy (with or without cataplexy).”
Respondent’s Report (“Resp. Report”) (ECF No. 21). Nevertheless, although respondent
recommends against compensation in this case, he “will not expend further resources to contest
entitlement in this matter.” Id. Respondent moved for a decision on entitlement based on the
record. Id. On October 27, 2015, I ruled that petitioner had established entitlement to
compensation based on a theory of causation in fact. Ruling on Entitlement (ECF No. 23).

1
  Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this unpublished ruling
contains a reasoned explanation for the action in this case, I intend to post it on the website of the United States
Court of Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the
ruling is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version” of the ruling. Id. If neither party files a motion for redaction within 14 days, the ruling will be
posted on the court’s website without any changes. Id.
        On March 2, 2018, respondent filed a Proffer on an award of compensation, which
indicates petitioner’s agreement to compensation on the terms set forth therein. Proffer (ECF
No. 96). The Proffer is attached hereto as Exhibit A.

        Consistent with the terms of the Proffer, I hereby award the following compensation
for all damages that would be available under 42 U.S.C. § 300aa-15(a):

         A. A lump sum payment of $1,017,346.24 (representing compensation for lost past and
            future earnings ($757,886.00); pain and suffering ($220,973.00); past unreimbursable
            expenses ($19,450.24); and life care expenses for Year One ($19,037.00)), in the
            form of a check payable to petitioner; and

         B. An amount sufficient to purchase an annuity contract as described in the
            Proffer, paid to the life insurance company from which the annuity will be
            purchased.

       The Clerk of the Court is directed to ENTER JUDGMENT in accordance with this
decision.2

         IT IS SO ORDERED.

                                                                          s/ Thomas L. Gowen
                                                                          Thomas L. Gowen
                                                                          Special Master




2
  Pursuant to Vaccine Rule 11(a), the entry of judgment is expedited by the parties jointly or separately filing notice
renouncing their right to seek review.

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


    KRISTINA GARRISON,

                        Petitioner,

    v.                                                 No. 14-762V
                                                       Special Master Thomas L. Gowen
    SECRETARY OF HEALTH AND                            ECF
    HUMAN SERVICES,

                        Respondent.



              RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

         On October 29, 2015, the Special Master issued a Ruling on Entitlement, concluding that

petitioner is entitled to compensation under the National Childhood Vaccine Injury Act of 1986

(“Vaccine Act”), as amended, 42 U.S.C. §§300aa-10 to -34. Respondent proffers that, based on

the Special Master’s entitlement decision and the evidence of record, petitioner should be

awarded the following items of compensation under the Vaccine Act.1

I. Items of Compensation

         A. Life Care Items

         The parties engaged life care planners Liz Kattman, BS, MS, and Laura Fox, MSN, BSN,

RN, CLCP, to provide an estimation of petitioner’s future vaccine injury-related needs.2 Based


1
  The parties have no objection to the amount of the proffered award of damages. Assuming the
Special Master issues a damages decision in conformity with this proffer, the parties waive their
right to seek review of such damages decision. However, respondent reserves his right, pursuant
to 42 U.S.C. § 300aa-12(e), to seek review of the Special Master’s October 29, 2015, entitlement
decision.
2
  For the purposes of this proffer, the term “vaccine related” is as described in the Special
Master’s decision dated October 29, 2015, and only pertains to petitioner’s narcolepsy with
cataplexy and related sequelae.
on the planners evaluations, the parties’ have come to a joint consensus regarding appropriate

items of care. All items of compensation identified by the parties’ life care plan are supported by

the evidence, and are illustrated by the chart entitled Summary of Life Care Items, dated January

31, 2018, attached hereto as Tab A. Respondent proffers that petitioner 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.

       B. Lost Earnings

       The parties agree that based upon the evidence of record, petitioner will never again be

gainfully employed. Therefore, respondent proffers that petitioner should be awarded lost past

and future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A).

Respondent proffers that the appropriate award for petitioner’s lost past and future earnings is

$757,886.00. This amount reflects that the award for lost future earnings has been reduced to net

present value. Petitioner agrees.

       C. Pain and Suffering

       Respondent proffers that petitioner should be awarded $220,973.00 for actual and

projected pain, suffering, and emotional distress. See 42 U.S.C. § 300aa-15(a)(4). This amount

reflects that the award for projected pain and suffering has been reduced to net present value.

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 $19,450.24. Petitioner agrees.




                                                 2
       E.      Medicaid Lien

       To the best of respondent’s knowledge and upon the representation of petitioner,

petitioner has never received Medicaid benefits. Accordingly, there is no Medicaid lien.

       F.      Attorneys’ Fees and Costs

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

reasonable attorneys’ fees and costs incurred following interim fees and costs awarded by

judgment entered on August 22, 2016, 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 petitioner should be made

through a combination of one-time 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 for all compensation3 available under 42 U.S.C. § 300aa-15(a).

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

following elements:

       A. A lump sum payment of $1,017,346.24, (representing compensation for lost past and

future earnings ($757,886.00), pain and suffering ($220,973.00), past unreimbursable expenses

($19,450.24), and life care expenses for Year One ($19,037.00)), in the form of a check payable

to petitioner; and




       3
          Should petitioner die prior to entry of judgment, respondent would oppose any award
for future medical expenses, future lost earnings and future projected pain and suffering and the
parties reserve the right to move the Court for appropriate relief.

                                                 3
       B. An amount sufficient to purchase an annuity contract,4 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, and paid to the life insurance company5 from

which the annuity will be purchased.6 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,

only so long as petitioner 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. Annual totals set forth in the far-right column of 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.




       4
         To satisfy the conditions set forth herein, in respondent’s discretion, respondent may
purchase one or more annuity contracts from one or more life insurance companies.
       5
          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.
       6
        Petitioner authorizes the disclosure of certain documents filed by the petitioners 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
                1.        Growth Rate

        Respondent proffers that a six percent (6%) growth rate should be applied to life care

items pertaining to insurance coverage, and a four percent (4%) growth rate should be applied to

all remaining 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: six percent (6%) compounded annually

from the date of judgment for insurance (illustrated in the first column of Tab A), and four

percent (4%) compounded annually from the date of judgment for all remaining items.

                2.        Life-Contingent Annuity

         Petitioner will continue to receive the annuity payments from the Life Insurance

Company only so long as petitioner is alive at the time that a particular payment is due.

Petitioner’s estate shall provide written notice to the Secretary of Health and Human Services

and the Life Insurance Company within twenty (20) days of petitioner’s death.

                3.        Guardianship Issues

        Petitioner is a legally competent adult, and aforementioned payments will be made

directly to petitioner.

III. Summary of Recommended Payments Following Judgment

        A.      Lump Sum paid to petitioner:                                          $1,017,346.24

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

        C.      Reasonable final attorneys’ fees and litigation costs:                          TBD

                                                Respectfully submitted,

                                                CHAD A. READLER
                                                Acting Assistant Attorney General

                                                C. SALVATORE D’ALESSIO
                                                Acting Director
                                                Torts Branch, Civil Division
                                                   5
                       CATHARINE E. REEVES
                       Deputy Director
                       Torts Branch, Civil Division

                       GABRIELLE M. FIELDING
                       Assistant Director
                       Torts Branch, Civil Division

                       s/ RYAN D. PYLES
                       RYAN D. PYLES
                       Trial Attorney
                       Torts Branch, Civil Division
                       U.S. Department of Justice
                       P.O. Box 146
                       Benjamin Franklin Station
                       Washington, D.C. 20044-0146
                       Tel: (202) 616-9847

DATED: March 2, 2018




                          6
                                                                                                                    TAB A


        Pet. Kristina Garrison
        D.O.B. 12/13/1972

               DATE:       01/31/18
               TIME:      06:58 PM

SUMMARY OF LIFE CARE ITEMS - RESPONDENT'S LIFE CARE PLAN dated November 16, 2017 - As Modified January 31, 2018


ITEM OF CARE             Insurance      Medications         Home     Transportation        TOTALS            TOTALS OF
                                                          Services                          of Items         4.0% ITEMS
                                                                                         with a 4.0%        & APPLYING
                                                                                        Growth Rate        THE GROWTH
GROWTH RATE                      6.0%          4.0%          4.0%              4.0%                                RATE

 AGE            YEAR

   46             2018     2,520.00         9,346.00        640.00          3,103.96          19,037               19,037
   47             2019     2,520.00         9,346.00          0.00             31.96          13,610               14,154
   48             2020     2,520.00         9,346.00          0.00             31.96          13,610               14,721
   49             2021     2,520.00         9,346.00          0.00             31.96          13,610               15,309
   50             2022     2,520.00         9,346.00          0.00             31.96          12,038               14,083
   51             2023     2,520.00         9,346.00          0.00             31.96          12,038               14,646
   52             2024     2,520.00         9,346.00          0.00             31.96          12,038               15,232
   53             2025     2,520.00         9,346.00          0.00             31.96          12,038               15,841
   54             2026     2,520.00         9,346.00          0.00             31.96          12,038               16,475
   55             2027     2,520.00         9,346.00          0.00             31.96          12,038               17,134
   56             2028     2,520.00         9,346.00          0.00             31.96          12,038               17,819
   57             2029     2,520.00         9,346.00          0.00             31.96          12,038               18,532
   58             2030     2,520.00         9,346.00          0.00             31.96          12,038               19,273
   59             2031     2,520.00         9,346.00          0.00             31.96          12,038               20,044
   60             2032     2,520.00         9,346.00          0.00             31.96          12,038               20,846
   61             2033     2,520.00         9,346.00          0.00             31.96          12,038               21,680
   62             2034     2,520.00         9,346.00          0.00             31.96          12,038               22,547
   63             2035     2,520.00         9,346.00          0.00             31.96          12,038               23,449
   64             2036     2,520.00         9,346.00          0.00             31.96          12,038               24,387
   65             2037     2,520.00         9,346.00          0.00             31.96          12,038               25,362
   66             2038       912.00         9,346.00          0.00             31.96          10,430               22,853
   67             2039       912.00         9,346.00          0.00             31.96          10,430               23,767
   68             2040       912.00         9,346.00          0.00             31.96          10,430               24,718
   69             2041       912.00         9,346.00          0.00             31.96          10,430               25,707
   70             2042       912.00         9,346.00          0.00             31.96          10,430               26,735
   71             2043       912.00         9,346.00          0.00             31.96          10,430               27,805
   72             2044       912.00         9,346.00          0.00             31.96          10,430               28,917
   73             2045       912.00         9,346.00          0.00             31.96          10,430               30,073
   74             2046       912.00         9,346.00          0.00             31.96          10,430               31,276
   75             2047       912.00         9,346.00          0.00             31.96          10,430               32,527
   76             2048       912.00         9,346.00          0.00             31.96          10,430               33,829
   77             2049       912.00         9,346.00          0.00             31.96          10,430               35,182
   78             2050       912.00         9,346.00          0.00             31.96          10,430               36,589
   79             2051       912.00         9,346.00          0.00             31.96          10,430               38,052
   80             2052       912.00         9,346.00          0.00             31.96          10,430               39,575
   81             2053       912.00         9,346.00          0.00             31.96          10,430               41,158
   82             2054       912.00         9,346.00          0.00             31.96          10,430               42,804
   83             2055       912.00         9,346.00          0.00             31.96          10,430               44,516

                             66,816         355,148            640            4,286          440,213              956,653

                            15.18%           80.68%         0.15%             0.97%                               100.00%

This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990




                                                                            Garrison RESP LCP dated 11 16 17 REV 4 01 31 18
                                                                                                                   PAGE 1
