        In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                            No. 15-34V
                                    Filed: September 24, 2015
                                            Unpublished

****************************
RACHEL FAUCHER,                        *
                                       *
                   Petitioner,         *      Damages Decision Based on Proffer;
      v.                               *      Influenza or Flu Vaccine; Shoulder
                                       *      Injury Related to Vaccine Administration
SECRETARY OF HEALTH                    *      (“SIRVA”); Special Processing Unit
AND HUMAN SERVICES,                    *      (“SPU”)
                                       *
                   Respondent.         *
                                       *
****************************
Ronald Homer, Esq., Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner.
Claudia Gangi, Esq., U.S. Department of Justice, Washington, DC for respondent.

                                DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

       On January 12, 2015, Rachel Faucher filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 [the
“Vaccine Act” or “Program”]. Petitioner alleges that she suffered a shoulder injury
related to vaccine administration (SIRVA) which was caused by the influenza vaccine
she received on September 11, 2013. Petition at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters.

       On May 12, 2015, a ruling on entitlement finding petitioner entitled to
compensation for her shoulder injury related to vaccine administration [“SIRVA”] was
issued. On September 24, 2015, respondent filed a proffer on award of compensation
[“Proffer”] indicating petitioner should be awarded a lump sum payment of $394,670.96
and payment to purchase an annuity contract (or contracts) to provide yearly amounts
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post it on the United States Court of Federal Claims' website, in accordance with the E-Government
Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). 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, I agree that the identified material fits within this definition, I 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 (2006).
for items of care as illustrated in Tab A (filed as an attachment to the Proffer) directly to
petitioner as long as she lives. Proffer at 3-4.

       Pursuant to the terms stated in the attached Proffer, I award petitioner payment
as follows:

                1. A lump sum payment of $394,670.96 in the form of a check payable
solely to petitioner, Rachel Faucher;

              2. A payment sufficient to purchase the annuity contract described in
section II.B. of the Proffer.

      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

                                        s/Nora Beth Dorsey
                                        Nora Beth Dorsey
                                        Chief Special Master




3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.


                                                    2
          Case 1:15-vv-00034-UNJ Document 23 Filed 09/24/15 Page 1 of 5



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

___________________________________
                                    )
RACHEL FAUCHER,                     )
                                    )
                  Petitioner,       )
                                    )                 No. 15-34V
v.                                  )                 Chief Special Master Dorsey
                                    )                 ECF
SECRETARY OF HEALTH AND             )
HUMAN SERVICES                      )
                                    )
                  Respondent,       )
___________________________________ )

                         RESPONDENT'S PROFFER ON DAMAGES

        Respondent submits the following recommendations regarding items of compensation to

be awarded to petitioner under the Vaccine Act.

   I.        Items of Compensation

        A.      Respondent proffers Rachel Faucher (“petitioner”) should be awarded all items of

compensation included in this Proffer and those illustrated by the chart attached as Tab A.

Specifically, respondent proffers:

                1. Health Insurance, Medicare, and Medigap

        For future unreimbursable health insurance, Medicare Part B, and Medigap Plan C,

beginning on the first anniversary of the date of judgment, an annual amount of $4,315.08 to be

paid up to the anniversary of the date of judgment in year 2024, then beginning on the

anniversary of the date of judgment in year 2024, an annual amount of $2,293.20 to be paid for

the remainder of petitioner’s life, all amounts increasing at the rate of five percent (5.0%),

compounded annually from the date of judgment. Petitioner agrees.
               Case 1:15-vv-00034-UNJ Document 23 Filed 09/24/15 Page 2 of 5



                   2. Home Services

          For future unreimbursable home services, beginning on the first anniversary of the date of

judgment, an annual amount of $979.00 to be paid for the remainder of petitioner’s life, all

amounts increasing at the rate of four percent (4.0%), compounded annually from the date of

judgment. Petitioner agrees.

          B.       Home Modifications

          Respondent proffers that petitioner should be awarded a one-time lump sum payment of

$1,995.00 for future home modifications. Petitioner agrees.

          C.       Lost Earnings

          The parties agree that based upon the evidence of record, Rachel Faucher has suffered a

past loss of earnings and will suffer future lost earnings as a result of her vaccine-related injury.

Therefore, respondent proffers that petitioner should be awarded a lump sum of $235,419.29 for

all lost earnings, past and future, as provided under the Vaccine Act, 42 U.S.C. § 300aa-

15(a)(3)(A). Petitioner agrees.

          D.       Pain and Suffering

          Respondent proffers that petitioner should be awarded $145,000.00 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). Petitioner

agrees.

          E.       Past Unreimbursed Expenses

          Evidence supplied by petitioner documents her expenditure of past un-reimbursable

expenses related to her vaccine-related injury. Respondent proffers that the petitioner is entitled

to past un-reimbursed expenses in the amount of $2,771.67. Petitioner agrees.



                                                  2
             Case 1:15-vv-00034-UNJ Document 23 Filed 09/24/15 Page 3 of 5



        F.        Medicaid Lien

        Petitioner represents that there are no outstanding Medicaid liens related to her vaccine-

related injury.

        II.       Form of the Award

        The parties recommend that the compensation provided to petitioner for her future

medical care needs should be made through a combination of a one-time lump sum payment and

future annuity payments as described below, and request that the Chief Special Master’s decision

and the Court’s judgment reflect the following items of compensation. 1

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

following elements:

        A. A lump sum payment of $394,670.96, representing health insurance, home services,

and home modification expenses for Year One ($11,480.00), compensation for lost earnings

($235,419.29), past un-reimbursed expenses ($2,771.67), and pain and suffering ($145,000.00),

in the form of a check payable to petitioner.

        B. An amount sufficient to purchase an annuity contract, 2 subject to the conditions

described below, that will provide payments for the items of care illustrated by the chart at Tab

A, attached hereto, and paid to the life insurance company3 from which the annuity will be


1
  Should petitioner die prior to entry of judgment, respondent would oppose any award for
future medical expenses and future pain and suffering, and the parties reserve the right to move
the Court for appropriate relief.
2
  In respondent’s discretion, respondent may purchase one or more annuity contracts from one
or more life insurance companies.
3
  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;
                                                 3
          Case 1:15-vv-00034-UNJ Document 23 Filed 09/24/15 Page 4 of 5



purchased. 4 Compensation for Year Two (beginning on the first anniversary of the date of

judgment) and all subsequent payments shall be provided through respondent’s purchase of an

annuity, which annuity will make payments directly to the petitioner only so long as she is alive

at the time a particular payment is due. The “annual amounts” set forth in 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 Rates

       Respondent proffers that a four percent (4.0%) growth rate should be applied to all non-

medical items, and a five percent (5.0%) growth rate should be applied to all medical items. The

benefits illustrated in the chart at Tab A that are to be paid through annuity payments should

grow as follows: four percent (4.0%) for all non-medical items, and five percent (5.0%) for all

medical items, compounded annually from the date of judgment. Petitioner agrees.

               2.      Life-contingent Annuity

       Petitioner will continue to receive the annuity payments for future medical care from the

Life Insurance Company only so long as she 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 made within twenty (20) days of petitioner’s death.



               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
  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-00034-UNJ Document 23 Filed 09/24/15 Page 5 of 5



      III.   Summary of Recommended Payments Following Judgment

             A.      Lump Sum paid to Petitioner:          $394,670.96

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

             section II. B.

                                                    Respectfully submitted,

                                                    BENJAMIN C. MIZER
                                                    Principal Deputy Assistant Attorney General

                                                    RUPA BHATTACHARYYA
                                                    Director
                                                    Torts Branch, Civil Division

                                                    VINCENT J. MATANOSKI
                                                    Deputy Director
                                                    Torts Branch, Civil Division

                                                    ALTHEA W. DAVIS
                                                    Senior Trial Counsel
                                                    Torts Branch, Civil Division


                                                    /s/ Claudia B. Gangi
                                                    CLAUDIA B. GANGI
                                                    Senior 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) 616-4138



Dated: September 23, 2015




                                              5
                Case 1:15-vv-00034-UNJ Document 23-1 Filed 09/24/15 Page 1 of 1                                                                        TAB A



        Pet. Rachel Faucher
        D.O.B. 09/16/1959

               DATE:      08/21/15
               TIME:     11:52 AM

        SUMMARY OF LIFE CARE ITEMS - Per PETITIONER'S DEMAND dated May 18, 2015 and July 2, 2015 as modified August 21, 2015

ITEM OF CARE             Insurance       Home Services          Home          TOTALS            TOTALS               TOTALS OF
                                                         Modifications         of Items          of Items      5.0% & 4.0% ITEMS
                                                                            with a 5.0%       with a 4.0%           & APPLYING
                                                                           Growth Rate       Growth Rate           THE GROWTH
GROWTH RATE                      5.0%            4.0%            4.0%                                                       RATE

 AGE            YEAR

   56            2015         8,505.60          979.00        1,995.00               8,506          2,974                   11,480
   57            2016         4,315.08          979.00            0.00               4,315            979                    5,549
   58            2017         4,315.08          979.00            0.00               4,315            979                    5,816
   59            2018         4,315.08          979.00            0.00               4,315            979                    6,096
   60            2019         4,315.08          979.00            0.00               4,315            979                    6,390
   61            2020         4,315.08          979.00            0.00               4,315            979                    6,698
   62            2021         4,315.08          979.00            0.00               4,315            979                    7,021
   63            2022         4,315.08          979.00            0.00               4,315            979                    7,360
   64            2023         4,315.08          979.00            0.00               4,315            979                    7,715
   65            2024         2,293.20          979.00            0.00               2,293            979                    4,951
   66            2025         2,293.20          979.00            0.00               2,293            979                    5,185
   67            2026         2,293.20          979.00            0.00               2,293            979                    5,429
   68            2027         2,293.20          979.00            0.00               2,293            979                    5,686
   69            2028         2,293.20          979.00            0.00               2,293            979                    5,954
   70            2029         2,293.20          979.00            0.00               2,293            979                    6,236
   71            2030         2,293.20          979.00            0.00               2,293            979                    6,531
   72            2031         2,293.20          979.00            0.00               2,293            979                    6,839
   73            2032         2,293.20          979.00            0.00               2,293            979                    7,163
   74            2033         2,293.20          979.00            0.00               2,293            979                    7,502
   75            2034         2,293.20          979.00            0.00               2,293            979                    7,857
   76            2035         2,293.20          979.00            0.00               2,293            979                    8,230
   77            2036         2,293.20          979.00            0.00               2,293            979                    8,620
   78            2037         2,293.20          979.00            0.00               2,293            979                    9,028
   79            2038         2,293.20          979.00            0.00               2,293            979                    9,457
   80            2039         2,293.20          979.00            0.00               2,293            979                    9,905
   81            2040         2,293.20          979.00            0.00               2,293            979                   10,375
   82            2041         2,293.20          979.00            0.00               2,293            979                   10,868
   83            2042         2,293.20          979.00            0.00               2,293            979                   11,384

                               86,597           27,412           1,995           86,597            29,407                  211,327

                              74.65%            23.63%          1.72%                                                      100.00%

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


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