        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 16-333V
                                    Filed: February 15, 2017
                                         UNPUBLISHED

****************************
SHELLY M. PINCKARD,                    *
                                       *
                   Petitioner,         *      Damages Decision Based on Proffer;
v.                                     *      Influenza;
                                       *      Shoulder Injury; SIRVA;
SECRETARY OF HEALTH                    *      Special Processing Unit (“SPU”)
AND HUMAN SERVICES,                    *
                                       *
                   Respondent.         *
                                       *
****************************
Daniel Mark Soloway, Soloway Law Firm, Pensacola, FL, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

      On March 15, 2016, 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 experienced a left shoulder injury following
her September 19, 2013 influenza vaccination. Petition at 1. The case was assigned to
the Special Processing Unit of the Office of Special Masters.

        On July 21, 2016, a ruling on entitlement was issued, finding petitioner entitled to
compensation for a shoulder injury related to vaccine administration (“SIRVA”). On
February 15, 2017, respondent filed a proffer on award of compensation (“Proffer”)
indicating petitioner should be awarded a lump sum of $1,845,047.00 and an amount
sufficient to purchase an annuity contract as described in Proffer Section A. Petitioner
agrees with the amounts set forth in the Proffer.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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 has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.

2National 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).
 Proffer at 1-2. 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:

    •   A lump sum payment of $1,845,047.00, representing $6,798.00 for future life
        care expenses for the first year following entry of judgment, $21,568.00 for
        past unreimbursable expenses, $175,000.00 for past and future pain and
        suffering at next present value, and $1,641,681.00 for past and future loss
        of earnings at net present value, in the form of a check payable to
        petitioner, Shelly M. Pinckard; and

    •   An amount sufficient to purchase the annuity contract described in the
        Proffer Section A.

      These amounts represent compensation for all damages that would be available
under § 300aa-15(a).

       The clerk of the court is directed to enter judgment in accordance with this
decision. 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 can be 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


SHELLY M. PINCKARD,

                       Petitioner,

v.                                                    No. 16-333V
                                                      Chief Special Master Nora Beth Dorsey
SECRETARY OF HEALTH AND                               ECF
HUMAN SERVICES,

                       Respondent.


             RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

       On July 20, 2016, respondent filed her Rule 4(c) Report, in which she recommended that

the Court find petitioner entitled to compensation, and on July 21, 2016, the Court entered its

Ruling on Entitlement, finding petitioner entitled to compensation. Respondent now proffers

that petitioner receive an award as follows:

       A. Life Care Items Beginning on the First Anniversary of Judgment.

       Respondent proffers an amount sufficient to purchase an annuity contract described

below in this Section A of this Proffer, paid to the life insurance company from which the

annuity will be purchased (the “Life Insurance Company”).1


1
  Notwithstanding references herein to “the Life Insurance Company” or “the annuity contract,”
to satisfy the conditions set forth herein, in respondent’s sole and absolute discretion, respondent
may purchase one or more annuity contracts from one or more life insurance companies.
Moreover, 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;



                                                 1
       The Secretary of Health and Human Services agrees to purchase an annuity contract from

the Life Insurance Company for the benefit of petitioner, pursuant to which the Life Insurance

Company will agree to make payments periodically to petitioner for the following items of

compensation:

        a. For future medical insurance expenses, beginning on the first anniversary of the date
of judgment, an annual amount of $5,000.00 to be paid up to the anniversary of the date of
judgment in year 2048, then beginning on the anniversary of the date of judgment in year 2048
an annual amount of $2,470.00 to be paid for the remainder of petitioner’s life, all amounts
increasing at the rate of four percent (4%), compounded annually from the date of judgment;

       b. For medications, beginning on the first anniversary of the date of judgment, annual
amount of $1,283.88 to be paid up to the anniversary of the date of judgment in year 2048, then
beginning on the anniversary of the date of judgment in year 2048 an annual amount of
$13,541.76 to be paid for the remainder of petitioner’s life, all amounts increasing at the rate of
four percent (4%), compounded annually from the date of judgment; and

      c. For future supplies and equipment, beginning on the first anniversary of the date of
judgment, an annual amount of $111.92 to be paid for the remainder of petitioner’s life, all
amounts increasing at the rate of four percent (4%), compounded annually from the date of
judgment.

       At the sole discretion of the Secretary of Health and Human Services, the periodic

payments may be provided to petitioner in monthly, quarterly, annual or other installments. The

“annual amounts” set forth above describe only the total yearly sum to be paid to petitioner and

do not require that the payment be made in one annual installment. 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. Written notice to the Secretary of Health and

Human Services and the Life Insurance Company shall be provided within twenty (20) days of

petitioner’s death.


       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.


                                                 2
       B.      Remaining Compensation for Damages Available under
               42 U.S.C. § 300aa-15(a).

       In addition to the compensation proffered above in Section A of this Proffer, respondent

proffers a lump sum of $1,845,047.00 in the form of a check payable to petitioner.2 This amount

represents all remaining compensation for damages that would be available under 42 U.S.C.

§ 300aa-15(a).3

       Petitioner agrees with the proffered award stated above in Sections A and B of this

Proffer.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




2
  This sum consists of $6,798.00 for future life care plan expenses for the first year following the
entry of judgment; $21,568.00 for past unreimburseable expenses; $175,000.00 for past and
future pain and suffering at net present value; and $1,641,681.00 for past and future loss of
earnings at net present value.
3
  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 pain and suffering, and future lost wages.
4
  This proffer does not include any award for attorneys’ fees and costs that may be awarded
pursuant to 42 U.S.C. § 300aa-15(e).


                                                 3
                               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, DC 20044-0146
                               Tel: (202) 616-9847

Dated: February 15, 2017




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