2015, Special Master Denise Vowell issued a decision finding that petitioners were entitled to
compensation.

        On May 29, 2018, respondent filed a Proffer on Award of Compensation (“Proffer”). In
the Proffer, respondent represented that petitioners agree with the proffered award. Proffer at 2-
3. Based on the record as a whole, the undersigned finds that petitioners are entitled to an award
as stated in the Proffer.

       Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner:

         (1) A lump sum payment of $1,228,911.64, representing compensation for lost
             future earnings ($921,885.04), pain and suffering ($225,000.00), and life care
             expenses expected to be incurred during the first year after judgment
             ($82,026.60), in the form of a check made payable to petitioners as court-
             appointed guardian(s)/conservator(s) of M.W.’s estate.

         (2) A lump sum payment in the amount of $658,747.40, representing compensation
             for past unreimbursable expenses, in the form of a check payable to petitioners.

         (3) An amount sufficient to purchase the annuity contract described in section II.C.
             of the Proffer.

Proffer at 3-4.

        In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court SHALL ENTER JUDGMENT herewith.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 is 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

MARY KATE WRIGHT and GARRY WRIGHT, )
as legal representatives of a minor child, M.W., )
                                                 )
                       Petitioners,              )
                                                 )
        v.                                       ) No. 12-423V
                                                 ) Chief Special Master Nora Beth Dorsey
SECRETARY OF                                     )
HEALTH AND HUMAN SERVICES,                       )
                                                 )
                       Respondent.               )
                                                 )

             RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

       On June 28, 2012, Mary Kate Wright and Garry Wright (“petitioners”) filed this claim

under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act” or “Act”), as

amended, 42 U.S.C. §§ 300aa-1 to 34, on behalf of their son, M.W., alleging that the diphtheria-

tetanus-acellular-pertussis, inactivated poliovirus, and hemophilus influenza B combination

vaccine that he received on July 6, 2009, caused encephalopathy. Following a hearing, Special

Master Denise Vowell issued a written opinion on September 21, 2015, concluding that

petitioners were entitled to vaccine compensation after finding that M.W. suffered an

encephalopathy that satisfied the criteria set forth in the Vaccine Injury Table. 42 C.F.R.

§ 100.3.

I.     Items of Compensation

       A.      Life Care Items

       The respondent engaged life care planner, M. Virginia Walton, RN, MSN, FNP, CNCLP,

and petitioners engaged Roberta J. Hurley, BS. Ed., and Terry K. Arnold, RN, CDMS, CRRN,

CLCP, CNLCP, to provide an estimation of M.W.’s future vaccine-injury related needs. For the
purposes of this proffer, the term “vaccine related” is as described in the Chief Special Master’s

Ruling Finding Entitlement, filed September 21, 2015. 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 M.W., attached hereto as Tab A. 1 Respondent proffers that M.W.

should be awarded all items of compensation set forth in the life care plan and illustrated by the

chart attached at Tab A. 2 Petitioners agree.

         B.     Lost Future Earnings

         The parties agree that based upon the evidence of record, M.W. will not be gainfully

employed in the future. Therefore, respondent proffers that M.W. 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 M.W.’s lost future earnings is $921,885.04. Petitioners

agree.

         C.     Pain and Suffering

         Respondent proffers that M.W. should be awarded $225,000.00 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). Petitioners agree.




         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.
         2
           The parties have no objection to the proffered award of damages. Assuming the Chief
Special Master issues a damages decision in conformity with this proffer, the parties intend to
waive their right to seek review of such damages decision, recognizing that respondent reserves
her right, pursuant to 42 U.S.C. § 300aa-12(f), to seek review of the Special Master’s September
21, 2015, decision finding petitioners entitled to an award under the Vaccine Act. This right
accrues following entry of judgment.


                                                 2
       D.      Past Unreimbursable Expenses

       Evidence supplied by petitioners documents their expenditure of past unreimbursable

expenses related to M.W.’s vaccine-related injury. Respondent proffers that petitioners should

be awarded past unreimbursable expenses in the amount of $658,747.40. Petitioners agree.

II.    Form of the Award

       The parties recommend that the compensation provided to M.W. 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:

       A. A lump sum payment of $1,228,911.64, representing compensation for lost future

earnings ($921,885.04), pain and suffering ($225,000.00), and life care expenses for Year One

($82,026.60), in the form of a check payable to petitioners as guardian(s)/conservator(s) of the

estate of M.W., for the benefit of M.W. No payments shall be made until petitioners provide

respondent with documentation establishing that they have been appointed as the

guardian(s)/conservator(s) of M.W.’s estate. If petitioners are not authorized by a court of

competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of M.W., any such

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

serve as guardian(s)/conservator(s) of the estate of M.W. upon submission of written

documentation of such appointment to the Secretary.

       B. A lump sum payment of $658,747.40, representing compensation for past

unreimbursable expenses, in the form of a check payable to petitioners.




                                                3
       C. An amount sufficient to purchase the 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 petitioners

as guardian(s)/conservator(s) of the estate of M.W., only so long as M.W. is alive at the time a

particular payment is due. At the Secretary’s sole discretion, the periodic payments may be

provided to petitioners 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

petitioners and do not require that the payment be made in one annual installment.




   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. M.W. 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.
   5
     Petitioners authorize 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 four percent (4%) 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: four percent (4%) compounded annually from the date of

judgment for non-medical items, and five percent (5%) compounded annually from the date of

judgment for medical items. Petitioners agree.

               2.      Life-Contingent Annuity

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

Company only so long as M.W. 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 M.W.’s death.

               3.      Guardianship

       No payments shall be made until petitioners provide respondent with documentation

establishing that they have been appointed as the guardian(s)/conservator(s) of M.W.’s estate. If

petitioners are not authorized by a court of competent jurisdiction to serve as guardian(s)/

conservator(s) of the estate of M.W., any such payment shall be made to the party or parties

appointed by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate

of M.W. upon submission of written documentation of such appointment to the Secretary.




                                                 5
III.   Summary of Recommended Payments Following Judgment

       A.    Lump sum paid to petitioners as court-appointed
             guardian(s)/conservator(s) of M.W.’s estate:                $ 1,228,911.64

       B.    Paid to petitioners:                                        $   658,747.40

       C.    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

                                          ALEXIS B. BABCOCK
                                          Assistant Director
                                          Torts Branch, Civil Division

                                          s/ LARA A. ENGLUND
                                          LARA A. ENGLUND
                                          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) 307-3013
                                          E-mail: lara.a.englund@usdoj.gov

Dated: May 29, 2018




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