         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-0308V
                                    Filed: September 8, 2017
                                         UNPUBLISHED


    ALAN L. JONES,
                                                             Special Processing Unit (SPU);
                        Petitioner,                          Damages Decision Based on Proffer;
    v.                                                       Influenza (Flu) Vaccine; Guillain-
                                                             Barre Syndrome (GBS)
    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.


Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner.
Jennifer L. Reynaud, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

        On March 9, 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 alleged that he suffered Guillain-Barré syndrome (“GBS”) as a result of
an influenza (“flu”) vaccine administered on October 16, 2014. Petition at preamble.
The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special
Masters.

        On August 18, 2017, the undersigned issued a ruling on entitlement, finding
petitioner entitled to compensation for GBS. On September 7, 2017, respondent filed a
proffer on award of compensation (“Proffer”) indicating petitioner should be awarded a
lump sum payment of $341,270.93, representing compensation for life care expenses
expected to be incurred during the first year after judgment ($87,067.33), lost earnings
($67,554.68), pain and suffering ($172,260.31), and past unreimbursable expenses
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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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.
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).
($14,388.61); $732.16 to satisfy two State of Florida Medicaid liens; and an amount
sufficient to purchase an annuity contract, as described in Proffer Section II.D. Proffer
at 1-5. In the Proffer, respondent represented that petitioner agrees with the proffered
award. Id.

       Based on the record as a whole, the undersigned finds that petitioner is entitled
to an award as stated in the Proffer. 3 Accordingly, pursuant to the terms stated in the
attached Proffer, the undersigned awards:

        A. A lump sum payment of $341,270.93, representing compensation for life
           care expenses expected to be incurred during the first year after
           judgment ($87,067.33), lost earnings ($67,554.68), pain and suffering
           ($172,260.31), and past unreimbursable expenses ($14,388.61), in the
           form of a check payable to petitioner, Alan L. Jones.

        B. A lump sum payment of $717.36, representing compensation for
           satisfaction of a State of Florida Medicaid lien, payable jointly to
           petitioner and

                                   Agency for Health Care Administration
                               Florida Medicaid Casualty Recovery Program
                                              P.O. Box 12188
                                       Tallahassee, FL 32317-2188
                                              Case #: 640160

            Petitioner agrees to endorse this payment to the State.

        C. A lump sum payment of $14.80, representing compensation for
           satisfaction of a State of Florida Medicaid lien, payable jointly to
           petitioner and

                                           The Rawlings Company
                                          ATTN: Kevin E. James J.D.
                                             Ref. No.: 76537760
                                               P.O. Box 2000
                                          LaGrange, KY 40031-2000

            Petitioner agrees to endorse this payment to the State.

        D. An amount sufficient to purchase the annuity contract described in the
           Proffer Section II.D.




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
lost earnings, and future pain and suffering. Proffer at 3 n.2.

                                                    2
       The clerk of the court is directed to enter judgment in accordance with this
decision. 4

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          Chief Special Master




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.


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


ALAN L. JONES,

                  Petitioner,

v.                                                              No. 16-308V
                                                                Chief Special Master Dorsey
SECRETARY OF HEALTH AND                                         ECF
HUMAN SERVICES,

                  Respondent.



               RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

         On March 9, 2016, Alan L. Jones (“petitioner”) filed a petition for compensation

(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -

34 (“Vaccine Act” or “Act”), as amended. Respondent did not contest petitioner’s entitlement to

compensation in his Rule 4(c) Report, filed on August 18, 2017. On August 18, 2017, the Chief

Special Master found petitioner entitled to compensation.

I.       Items of Compensation

         A.       Life Care Items

         Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLP, and petitioner

engaged Roberta Hurley, B.S., Ed., to provide an estimation of Alan L. Jones’s future vaccine-

injury related needs. 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

Alan L. Jones, attached hereto as Tab A. 1 Respondent proffers that Alan L. Jones should be



         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-
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, Alan L. Jones has suffered past

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

that Alan L. Jones 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 Alan L. Jones’s lost

earnings is $67,554.68. Petitioner agrees.

          C.     Pain and Suffering

          Respondent proffers that Alan L. Jones should be awarded $172,260.31 in actual and

projected pain and suffering. This amount reflects that any 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 Unreimbursable Expenses

          Evidence supplied by petitioner documents Alan L. Jones’s expenditure of past

unreimbursable expenses related to his vaccine-related injury. Respondent proffers that

petitioner should be awarded past unreimbursable expenses in the amount of $14,388.61.

Petitioner agrees.

          E.     Medicaid Lien

          Respondent proffers that Alan L. Jones should be awarded funds to satisfy two State of

Florida liens for a total amount of $732.16, which represents full satisfaction of any right of

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

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

of Alan L. Jones from the date of his eligibility for benefits through the date of judgment in this


                                                 -2-
case as a result of his vaccine-related injury suffered on or about October 16, 2014, under Title

XIX of the Social Security Act. Petitioner agrees to endorse these payments to the State.

II.      Form of the Award

         The parties recommend that the compensation provided to Alan L. Jones 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 $341.270.93, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($87,067.33), lost earnings

($67,554.68), pain and suffering ($172,260.31), and past unreimbursable expenses ($14,388.61),

in the form of a check payable to petitioner, Alan L. Jones.

         B. A lump sum payment of $717.36, representing compensation for satisfaction of a

State of Florida Medicaid lien, payable jointly to petitioner and

                                       Agency for Health Care Administration
                                    Florida Medicaid Casualty Recovery Program
                                                   PO Box 12188
                                            Tallahassee, FL 32317-2188
                                                   Case #: 640160

         C. A lump sum payment of $14.80, representing compensation for satisfaction of a State

of Florida Medicaid lien, payable jointly to petitioner and

                                                The Rawlings Company
                                              ATTN: Kevin E. James J.D.
                                                  Ref. No.: 76537760
                                                    PO Box 2000
                                              LaGrange, KY 40031-2000




         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.

                                                         -3-
        D. 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,

Alan L. Jones, only so long as Alan L. Jones 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 three percent (3%) 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

care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid through annuity

payments should grow as follows: three percent (3%) compounded annually from the date of



        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.

                                                       -4-
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 he, Alan L. Jones, 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 Alan L. Jones’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, Alan L. Jones:                                       $341,270.93

         B.       First Medicaid lien:                                                              $     717.36

         C.       Second Medicaid lien:                                                             $       14.80

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


                                                      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


         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.
                                                         -5-
                           HEATHER L. PEARLMAN
                           Assistant Director
                           Torts Branch, Civil Division

                           /s Jennifer L. Reynaud
                           JENNIFER L. REYNAUD
                           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) 305-1586

Dated: September 7, 2017




                             -6-
                                      Appendix A: Items of Compensation for Alan L. Jones                              Page 1 of 1

                                                        Lump Sum
                                                       Compensation Compensation
  ITEMS OF COMPENSATION              G.R.    *    M      Year 1      Years 2-Life
                                                          2017        2018-Life
Medicare Part B Deductible            5%     *
Medigap                               5%          M         2,221.08         2,221.08
Medicare Part D                       5%          M         2,152.06         2,152.06
Internist                             5%     *
Cardiologist                          5%     *
Neurologist                           5%     *
Homecare                              3%          M        33,945.00        33,945.00
PT                                    3%     *
Power WC                              3%     *
Gel Seat                              3%                      218.00           218.00
Rollator                              3%                      168.82            33.76
Bath Bench                            3%                       86.98            17.40
Universal Cuff                        3%                       40.21            40.21
Lift Chair                            3%                      363.55            36.36
Transfer Board                        3%                      187.00            37.40
Bedside Table                         3%                      127.00            12.70
Adj Bed                               3%                      723.00            72.30
Home Bed Assist Handrail              3%                       63.89             6.39
Modified Van                          3%                   46,114.40
Raised Toilet Seat                    3%                       29.99             6.00
Depends                               3%          M           351.35           351.35
Urinals                               3%                       71.04            71.04
Gloves                                3%                       27.50            27.50
Disp Pads                             3%                      176.46           176.46
Lost Earnings                                              67,554.68
Pain and Suffering                                        172,260.31
Past Unreimbursable Expenses                               14,388.61
Medicaid Lien                                                 717.36
Annual Totals                                             341,988.29        39,425.01
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 ($87,067.33), lost earnings ($67,554.68), pain and suffering ($172,260.31), and past unreimbursable
expenses ($14,388.61): $341,270.93.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and the lienholder, as reimbursement of the state's Medicaid lien: $717.36.
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.
