         In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                          Filed: July 20, 2017

* * * * * * * * * *                           *    * *
DONNA SCAMBY POWERS,                                 *
                                                     *                 UNPUBLISHED
                  Petitioner,                        *
                                                     *                 Special Master Gowen
v.                                                   *                 No. 15-1096V
                                                     *
SECRETARY OF HEALTH                                  *                 Proffer; Not Contesting Entitlement;
AND HUMAN SERVICES,                                  *                 Influenza (Flu) Vaccine; Guillain-Barré
                                                     *                 Syndrome (GBS)
                  Respondent.                        *
                                                     *
*    * * *        *    *    *   *    *    *   *    * *

Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner.
Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.

                                          DECISION ON PROFFER1

Gowen, Special Master:

        On September 30, 2015, 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 she suffered from Guillain-Barré Syndrome (GBS) as a result of an
influenza vaccine administered on October 10, 2012. Petition at 1.

        On June 29, 2017, respondent filed a status report along with his Rule 4(c) Report in
which he states that he does not contest that petitioner is entitled to compensation in this case.
Respondent’s Status Report at 1. On July 13, 2017, a ruling on entitlement was issued, finding
petitioner entitled to compensation for GBS. Counsel for the parties have worked diligently with
their experts and have come to a resolution of damages. Their respective life care planners have

1
  Because this decision contains a reasoned explanation for the action in this case, the undersigned intends to post it
on the website of the United States Court of Federal Claims, pursuant to the E-Government Act of 2002, see 44
U.S.C. § 3501 note (2012). The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before
the decision 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 decision.” Id. If neither party files a motion for redaction within 14 days, the
decision will be posted on the court’s website. Id.
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).
agreed on future care issues and costs. The parties have submitted a projection of future lost
wages, which has been reduced to present value and to which they have agreed. On July 14,
2017, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner
should be awarded $841,728.00. Proffer at 5. In the Proffer, respondent represented that
petitioner agrees with the proffered award. I have reviewed the proffer and do award damages in
accord with it. The Proffer is incorporated herein and made a part hereof as Appendix A. Based
on the record as a whole, I find 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 the following in compensation:

           1) A lump sum payment of $841,728.00, representing compensation for lost past
              and future earnings ($618,595.00), pain and suffering ($173,968.00), and life care
              expenses for Year One ($49,165.00), in the form of a check payable to petitioner,
              Donna Scamby Powers.3

           2) An amount sufficient to purchase an annuity contract as described in Section II.
              B of the Proffer attached herein as Appendix A, 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.4

IT IS SO ORDERED.

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




3
    This amount represents compensation for all damages that would be available under § 300aa-15(a).
4
  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
           Case 1:15-vv-01096-UNJ Document 36 Filed 07/14/17 Page 1 of 5




             IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                        OFFICE OF THE SPECIAL MASTERS
____________________________________
DONNA SCAMBY POWERS,                 )
                                     )
            Petitioner,              )
                                     )    No. 15-1096V
v.                                   )    Special Master Thomas L. Gowen
                                     )    ECF
SECRETARY OF HEALTH AND              )
HUMAN SERVICES,                      )
                                     )
            Respondent,             )

              RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

         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

         Respondent engaged life care planner Linda Curtis, RN, MSN, CCM, CNCLP, and

petitioner engaged Roberta Hurley, Hurley and Econs Consulting, to provide an estimation of

Donna Scamby Powers’s (“petitioner”) future vaccine-injury related needs. The parties’

planners came to a joint consensus regarding appropriate items of care. For the purposes of this

proffer, the term “vaccine-related” is as described in respondent’s Rule 4(c) Report filed on June

29, 2017. All items of compensation identified in the agreed upon life care plan are supported

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

Donna Scamby Powers, attached hereto as Tab A.1 Respondent proffers that petitioner should


1
  Tab A illustrates the annual benefits provided by the agreed upon 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
               Case 1:15-vv-01096-UNJ Document 36 Filed 07/14/17 Page 2 of 5




be awarded all items of compensation set forth in the agreed upon life care plan and illustrated

by the chart attached at Tab A. Petitioner agrees.

          B. Lost Future Earnings

          The parties agree that based upon the evidence of record, Donna Scamby Powers has

suffered a past loss of earnings and will continue to suffer a loss of earnings in the future.

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 $618,595.00. 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 $173,968.00 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 Un-reimbursable Expenses

          Petitioner represents that she has not incurred any past un-reimbursable expenses related

to her vaccine-related injury.

          E.       Medicaid Lien

          Petitioner represents that there are no outstanding Medicaid liens against her.




                                                   2
             Case 1:15-vv-01096-UNJ Document 36 Filed 07/14/17 Page 3 of 5




II. Form of the Award

        The parties recommend that the compensation provided to Donna Scamby Powers should

be made through a combination of a one-time lump sum payment 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 compensation2 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 $841,728.00, (representing compensation for lost past and

future earnings ($618,595.00), pain and suffering ($173,968.00) and life care expenses for Year

One ($49,165.00)), in the form of a check payable to petitioner; and

        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, and paid to the life insurance company4



        2
           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
          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.

        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
            Case 1:15-vv-01096-UNJ Document 36 Filed 07/14/17 Page 4 of 5




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 Donna

Scamby Powers, only so long as Ms. Powers 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 structured settlement benefits” 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 six percent (6%) growth rate should be applied to all medical 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:              four percent (4%) compounded annually from the

date of judgment for non-medical items, and six percent (6%) compounded annually from the

date of judgment for medical 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



        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
             Case 1:15-vv-01096-UNJ Document 36 Filed 07/14/17 Page 5 of 5




and the Life Insurance Company within twenty (20) days of Ms. Powers’ 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:                               $841,728.00

        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

                                                     ALEXIS B. BABCOCK
                                                     Assistant Director
                                                     Torts Branch, Civil Division

                                                     s/Linda S. Renzi
                                                     LINDA S. RENZI
                                                     Senior Trial Counsel
                                                     Torts Branch, Civil Division
                                                     U.S. Department of Justice
                                                     P.O. Box 146
                                                     Benjamin Franklin Station
                                                     Washington, D.C. 20044-0146
                                                     Tel: (202) 616-4133
DATE:        July 14, 2017

                                                 5
                                                     Case 1:15-vv-01096-UNJ Document 36-1 Filed 07/14/17 Page 1 of 1                                                               TAB A



        Pet. Donna Scamby Powers
        D.O.B. 09/25/1953

              DATE:       07/06/17
              TIME:      12:35 PM

        SUMMARY OF LIFE CARE ITEMS - RESPONDENT'S LIFE CARE PLAN dated May 2, 2017

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

 AGE           YEAR

   64            2017     2,000.00          815.00      1,680.00     15,950.33       1,260.00    9,196.00           439.00       17,825.00          2,815            46,350                   49,165
   65            2018         0.00          863.90        291.20        867.78       1,310.40    9,497.28            45.66            0.00            864            12,012                   12,876
   66            2019     4,244.50          337.08          0.00        902.49           0.00    9,877.17            47.48            0.00          4,582            10,827                   15,409
   67            2020     4,499.17          357.30          0.00        938.59           0.00   10,272.26            49.38            0.00          4,856            11,260                   16,117
   68            2021     4,769.12          378.74          0.00        976.14           0.00   10,683.15            51.36            0.00          5,148            11,711                   16,859
   69            2022     5,055.27          401.47          0.00      1,015.18           0.00   11,110.47            53.41            0.00          5,457            12,179                   17,636
   70            2023     5,358.58          425.56          0.00      1,055.79           0.00   11,554.89            55.55            0.00          5,784            12,666                   18,450
   71            2024     5,680.10          451.09          0.00      1,098.02           0.00   12,017.09            57.77            0.00          6,131            13,173                   19,304
   72            2025     6,020.90          478.15          0.00      1,141.94           0.00   12,497.77            60.08            0.00          6,499            13,700                   20,199
   73            2026     6,382.16          506.84          0.00      1,187.62           0.00   12,997.68            62.48            0.00          6,889            14,248                   21,137
   74            2027     6,765.09          537.25          0.00      1,235.13           0.00   13,517.59            64.98            0.00          7,302            14,818                   22,120
   75            2028     7,170.99          569.49          0.00      1,284.53           0.00   14,058.29            67.58            0.00          7,740            15,410                   23,151
   76            2029     7,601.25          603.66          0.00      1,335.91           0.00   14,620.63            70.29            0.00          8,205            16,027                   24,232
   77            2030     8,057.33          639.88          0.00      1,389.35           0.00   15,205.45            73.10            0.00          8,697            16,668                   25,365
   78            2031     8,540.77          678.27          0.00      1,444.92           0.00   15,813.67            76.02            0.00          9,219            17,335                   26,554
   79            2032     9,053.21          718.97          0.00      1,502.72           0.00   16,446.22            79.06            0.00          9,772            18,028                   27,800
   80            2033     9,596.41          762.11          0.00      1,562.83           0.00   17,104.06            82.22            0.00         10,359            18,749                   29,108
   81            2034    10,172.19          807.83          0.00      1,625.34           0.00   17,788.23            85.51            0.00         10,980            19,499                   30,479
   82            2035    10,782.52          856.30          0.00      1,690.35           0.00   18,499.76            88.93            0.00         11,639            20,279                   31,918
   83            2036    11,429.47          907.68          0.00      1,757.97           0.00   19,239.75            92.49            0.00         12,337            21,090                   33,427
   84            2037    12,115.24          962.14          0.00      1,828.29           0.00   20,009.34            96.19            0.00         13,077            21,934                   35,011

                           145,294          13,059         1,971        41,791         2,570     292,007             1,799          17,825        158,353           357,963                  516,316


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




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