    In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-0268V
                                         UNPUBLISHED


    GAIL WARR,                                                Chief Special Master Corcoran

                         Petitioner,                          Filed: January 13, 2020
    v.
                                                              Special Processing Unit (SPU);
    SECRETARY OF HEALTH AND                                   Damages Decision Based on Proffer;
    HUMAN SERVICES,                                           Influenza (Flu) Vaccine; Guillain-
                                                              Barre Syndrome (GBS)
                        Respondent.


Simina Vourlis, Law Offices of Simina Vourlis, Columbus, OH, for petitioner.

Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.


                                DECISION AWARDING DAMAGES1

       On February 21, 2018, Gail Warr 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 Guillain-Barre Syndrome (“GBS”) as
a result of an influenza (“flu”) vaccine received on October 1, 2015. Petition at 1. The
case was assigned to the Special Processing Unit of the Office of Special Masters.

      On January 7, 2020, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for GBS. On January 13, 2020, Respondent filed a Proffer on award
of compensation (“Proffer”) indicating Petitioner should be awarded all items of
compensation set forth in the life care plan and illustrated by the chart attached at Tab
A. Proffer at 1-2. In the Proffer, Respondent represented that Petitioner agrees with


1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am
required 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). This means the ruling will be available to anyone with access to
the internet. 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 (2012).
the proffered award. Id. 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, I award Petitioner the
following compensation:

     1. A lump sum payment of $619,492.28, representing compensation for life
        care expenses expected to be incurred during the first year after judgment
        ($211,141.74), lost earnings ($147,778.22), pain and suffering
        ($250,000.00), and past unreimbursable expenses ($10,572.32), in the form
        of a check payable to Petitioner, Gail Warr.

     2. A lump sum payment of $40,518.02, representing compensation for
        satisfaction of an Ohio Department of Medicaid lien, payable jointly to
        Petitioner and the Treasurer, State of Ohio, and mailed to:

                                      Ohio Tort Recovery Unit
                                    350 Worthington Rd., Suite G
                                      Westerville, Ohio 43082
                                      Case Number: 1093122

     3. An amount sufficient to purchase an annuity contract, subject to the
        conditions described in the Proffer, that will provide payments for the life
        care items contained in the life care plan, as illustrated by the chart at Tab
        A, beginning with compensation for Year Two (on the first anniversary of
        the date of the judgment) and all subsequent years, paid to the life
        insurance company from which the annuity will be purchased. To clarify,
        the annuity will cover all items of compensation set forth in the life care
        plan and illustrated in the chart attached to the Proffer at Tab A, except
        those items of compensation for which payment will be made under #1 and
        #2 above.

This amount represents compensation for all damages that would be available under
§ 15(a).

       The clerk of the court is directed to enter judgment in accordance with this
decision.3

IT IS SO ORDERED.


                                          s/Brian H. Corcoran
                                          Brian H. Corcoran
                                          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
             Case 1:18-vv-00268-UNJ Document 79 Filed 01/13/20 Page 1 of 5

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


GAIL WARR,

                  Petitioner,

v.                                                              No. 18-268V ECF
                                                                Chief Special Master Corcoran
SECRETARY OF HEALTH AND
HUMAN SERVICES,

                  Respondent.



               RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

         On January 3, 2020, respondent filed a Rule 4(c) Report conceding that entitlement to

compensation was appropriate under the terms of the Vaccine Act. On January 7, 2020, Chief

Special Master Corcoran issued a Ruling on Entitlement, finding that Gail Warr (“petitioner”)

was entitled to vaccine compensation for her Guillain-Barré Syndrome. Respondent now

proffers the following regarding the amount of compensation to be awarded.

I.       Items of Compensation

         A.       Life Care Items

         The respondent engaged life care planner, Shelly Kinney, MSN, RN, CNLCP, CCM, and

petitioner engaged Shanna Huber, RN, BSN, MSN/Ed, CCM, CLCP, CNLCP, to provide an

estimation of petitioner’s future vaccine-injury related needs. For the purposes of this proffer,

the term “vaccine related” is as described in the respondent’s Rule 4(c) Report. 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 Gail Warr, attached hereto as Tab A. 1


         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-
            Case 1:18-vv-00268-UNJ Document 79 Filed 01/13/20 Page 2 of 5

Respondent proffers that petitioner should be 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, petitioner has suffered past loss

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

petitioner 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 petitioner’s lost

earnings is $147,778.22. Petitioner agrees.

       C.       Pain and Suffering

       Respondent proffers that petitioner should be awarded $250,000.00 in actual pain and

suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

       D.       Past Unreimbursable Expenses

       Evidence supplied by petitioner documents her expenditure of past unreimbursable

expenses related to her vaccine-related injury. Respondent proffers that petitioner should be

awarded past unreimbursable expenses in the amount of $10,572.32. Petitioner agrees.

       E.       Medicaid Lien

       Respondent proffers that petitioner should be awarded funds to satisfy an Ohio

Department of Medicaid lien in the amount of $40,518.02, which represents full satisfaction of

any right of subrogation, assignment, claim, lien, or cause of action the Ohio Department of

Medicaid may have against any individual as a result of any Medicaid payments the Ohio

Department of Medicaid has made to or on behalf of petitioner from the date of her eligibility for

benefits through the date of judgment in this case as a result of her vaccine-related injury

suffered on or about September 29, 2015, under Title XIX of the Social Security Act.




                                                 -2-
             Case 1:18-vv-00268-UNJ Document 79 Filed 01/13/20 Page 3 of 5

II.      Form of the Award

         The parties recommend that the compensation provided to petitioner 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 $619,492.28, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($211,141.74), lost earnings

($147,778.22), pain and suffering ($250,000.00), and past unreimbursable expenses

($10,572.32), in the form of a check payable to petitioner, Gail Warr.

         B. A lump sum payment of $40,518.02, representing compensation for satisfaction of an

Ohio Department of Medicaid lien, payable jointly to petitioner and the Treasurer, State of Ohio,

and mailed to:

                                           Ohio Tort Recovery Unit
                                         350 Worthington Rd. Suite G
                                           Westerville, Ohio 43082
                                           Case Number: 1093122

Petitioner agrees to endorse this payment to the Treasurer, State of Ohio.

         C. 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


         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
           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;

                                                         -3-
              Case 1:18-vv-00268-UNJ Document 79 Filed 01/13/20 Page 4 of 5

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,

Gail Warr, only so long as Gail Warr 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 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. Petitioner agrees.

         2.       Life-contingent annuity

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

Company only so long as she, Gail Warr, is alive at the time that a particular payment is due.




                  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
           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 1:18-vv-00268-UNJ Document 79 Filed 01/13/20 Page 5 of 5

Written notice shall be provided to the Secretary of Health and Human Services and the Life

Insurance Company within twenty (20) days of Gail Warr’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, Gail Warr:                     $619,492.28

       B.       Medicaid lien:                                              $ 40,518.02

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


                                             Respectfully submitted,

                                             JOSEPH H. HUNT
                                             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

                                             /s/Darryl R. Wishard
                                             DARRYL R. WISHARD
                                             Senior 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) 616-4357

Dated: January 13, 2020




                                               -5-
                           Case 1:18-vv-00268-UNJ Document 79-1 Filed 01/13/20 Page 1 of 1
                                                    Appendix A: Items of Compensation for Gail Warr                                       Page 1 of 1

                                                      Lump Sum
                                                     Compensation Compensation        Compensation     Compensation    Compensation
  ITEMS OF COMPENSATION             G.R. *      M       Year 1     Years 2-5            Year 6           Year 7        Years 8-Life
                                                         2020      2021-2024             2025             2026          2027-Life
Medicare Part B Premium              5%         M        1,735.20     1,735.20            1,735.20         1,735.20        1,735.20
Medicare Part B Deductible           5%         *
Medicare Adv                         5%         M         4,152.00        4,152.00         4,152.00         4,152.00           4,152.00
PT Eval                              4%    *
PT                                   4%    *
OT Eval                              4%    *
OT                                   4%    *
Therapeutic Counseling               4%    *
Home Health Aide                     4%         M       52,560.00        52,560.00        52,560.00        52,560.00      105,120.00
Case Manager                         4%         M        8,100.00         2,700.00         2,700.00         2,700.00        2,700.00
PCP                                  5%    *
Orthopedic Surgeon                   5%    *
Neurology                            5%    *
Urology                              5%    *
Home Mods                            4%                105,090.00
Van Conversion                       4%                 30,000.00         4,285.71         4,285.71         4,285.71           4,285.71
Drivers Ed                           4%                  2,530.00
Oxybutynin                           5%    *                24.00            24.00            24.00            24.00             24.00
Pads                                 4%                    740.95           740.95           740.95           740.95            740.95
Depends                              4%                    226.30           226.30           226.30           226.30            226.30
Transfer Board                       4%    *
Compression Socks                    4%                      64.50            64.50           64.50            64.50             64.50
Leg Weights                          4%                                                       20.72
Wii                                  4%                     699.00                           699.00
Power Lift Chair                     4%    *              1,316.00          263.20           263.20           263.20            263.20
Pellet Grill                         4%                     499.00           99.80            99.80            99.80             99.80
Power Assist WC                      4%    *
Bariatric Electric WC                4%    *
Roho Cushion                         4%    *
Hoyer Lift                           4%    *
Slings                               4%    *
Bedside Commode                      4%                    100.00            20.00            20.00            20.00             20.00
Walker                               4%                     40.00             8.00             8.00             8.00              8.00
Adj Mattress and Base                4%                  3,249.00           324.90           324.90           324.90            324.90
Reacher                              4%                     15.79            15.79            15.79            15.79             15.79
Lost Future Earnings                                   147,778.22
Pain and Suffering                                     250,000.00
Past Unreimbursable Expenses                            10,572.32
Medicaid Lien                                           40,518.02
Annual Totals                                          660,010.30        67,220.35        67,940.07        67,220.35      119,780.35
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 ($211,141.74), lost earnings ($147,778.22), pain and suffering ($250,000.00), and past unreimbursable
expenses ($10,572.32): $619,492.28.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and Treasurer, State of Ohio, as reimbursement of the state's Medicaid lien: $40,518.02.
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.
