         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-488V
                                      Filed: April 24, 2018
                                         UNPUBLISHED


    LESLIE LEWIS,
                                                             Special Processing Unit (SPU);
                        Petitioner,                          Damages Decision Based on Proffer;
    v.                                                       Tetanus Diphtheria acellular
                                                             Pertussis (Tdap) Vaccine;
    SECRETARY OF HEALTH AND                                  Encephalitis
    HUMAN SERVICES,

                       Respondent.


Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

       On April 19, 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 suffered injuries resulting from adverse effects of a
tetanus, diphtheria, and pertussis (“Tdap”) vaccination, received on September 9, 2014.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.

      On April 24, 2018, a ruling on entitlement was issued, finding petitioner entitled to
compensation for encephalitis. On April 23, 2018, respondent filed a proffer on award
of compensation (“Proffer”) 3 indicating petitioner should be awarded all items of

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
3Respondent filed his Rule 4(c) Report recommending that compensation be awarded and his Proffer on
Award of Compensation as a single document. (See ECF No. 52.) Only that part of the document
compensation listed in an attached summary of a life care plan, $185,000.00 for actual
and projected pain, suffering, and emotional distress, which amount reflects a reduction
to net present value, and $8,059.00 for past unreimbursable expenses. Proffer at 4-5.
In the Proffer, respondent represented that petitioner agrees with the proffered award.
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:

    •   A lump sum payment of $262,060.00, representing compensation for pain
        and suffering ($185,000.00), past unreimbursable expenses ($8,059.00), and
        life care expenses for Year One ($69,001.00), in the form of a check payable
        to petitioner, Leslie Lewis; and

    •   An amount 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. 4

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          Chief Special Master




identified as the Proffer on Award of Compensation, as well as the accompanying summary of life care
items, is attached hereto.

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.


                                                      2
                        PROFFER ON AWARD OF COMPENSATION

       Respondent submits the following recommendations regarding items of compensation to

be awarded under the Vaccine Act.

I.     Items of Compensation

       A.      Life Care Items

       The parties engaged life care planners Roberta Hurley, Hurley Consulting, and Linda

Curtis, RN, MS CCM, CNLCP, to provide an estimation of petitioner’s future vaccine-injury

related needs. Based on the planners’ evaluations, the parties’ have come to a joint consensus

regarding appropriate items of care. All items of compensation identified by the parties’ life care

plan are supported by the evidence, and are illustrated by the chart entitled Summary of Life

Care Items, attached hereto as Tab A. 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 Future Earnings

       The parties agree that based upon the evidence of record, petitioner was not gainfully

employed at the time of her vaccine injury. Therefore, respondent proffers that petitioner should

not be awarded lost past and future earnings as provided under the Vaccine Act, 42 U.S.C.

§ 300aa-15(a)(3)(A). Petitioner agrees.

       C.      Pain and Suffering

       Respondent proffers that petitioner should be awarded $185,000.00 for actual and

projected pain, suffering, and emotional distress. See 42 U.S.C. § 300aa-15(a)(4). This amount

reflects that the award for projected pain and suffering has been reduced to net present value.

Petitioner agrees.



                                                 4
        D.      Past Unreimbursable Expenses

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

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

awarded past un-reimbursable expenses in the amount of $8,059.00. Petitioner agrees.

II.     Form of the Award

        The parties recommend that the compensation provided to petitioner 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

award the following for all compensation 1 available under 42 U.S.C. § 300aa-15(a).

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

following elements:

        A.      A lump sum payment of $262,060.00, representing compensation for pain and

suffering ($185,000.00), past un-reimbursable expenses ($8,059.00), and life care expenses for

Year One ($69,001.00), in the form of a check payable to petitioner; and

        B.      An amount sufficient to purchase an annuity contract, 2 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, and paid to the life insurance company 3 from


1
  Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical
expenses, future lost earnings and future projected pain and suffering and the parties reserve the right to
move the Court for appropriate relief.
2
 To satisfy the conditions set forth herein, 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;

        b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;
                                                    5
which the annuity will be purchased. 4 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,

only so long as petitioner 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. Annual totals set forth in the far-right column of 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 five percent (5%) growth rate should be applied to life care

items pertaining to insurance coverage and medical care, and a four percent (4%) growth rate

should be applied to all remaining 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: five percent (5%)

compounded annually from the date of judgment for insurance and medical care (illustrated in

the first two columns of Tab A), and four percent (4%) compounded annually from the date of

judgment for all remaining items.




        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 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.

                                                      6
               2.      Life-Contingent Annuity

         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.

Petitioner’s estate shall provide written notice to the Secretary of Health and Human Services

and the Life Insurance Company within twenty (20) days of petitioner’s death.

               3.      Guardianship Issues

        Petitioner is a legally competent adult. Evidence of guardianship is not required in this

case.

III.    Summary of Recommended Payments Following Judgment

        A.     Lump Sum paid to petitioner: $262,060.00

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


                                                     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




                                                 7
                            /s/ Adriana Teitel
                            ADRIANA TEITEL
                            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) 616-3677
Dated: April 23, 2018




                        8
                                                                                                                                                                                 TAB A



        Pet. Leslie Lewis
        D.O.B. 03/04/1956

               DATE:        04/12/18


        SUMMARY OF LIFE CARE ITEMS

ITEM OF CARE            Insurance         Medical     Ancilliary    Supplies           Home      Transportation          Home        TOTALS         TOTALS             TOTALS OF
                                            Care       Services & Equipment          Services                     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%          5.0%          4.0%           4.0%           4.0%             4.0%            4.0%                                               RATE

 AGE           YEAR

   62            2018           0 00      3,500 00        556 00       1,880 23      44,880 00           610 74       17,574 00          3,500         65,501                69,001
   63            2019           0 00      3,500 00        506 00         550 22      44,880 00           610 74            0 00          3,500         46,547                52,084
   64            2020           0 00      3,500 00        506 00         550 22      44,880 00           610 74            0 00          3,500         46,547                54,204
   65            2021       3,253 44          0 00        506 00         550 22      44,880 00           610 74            0 00          3,253         46,547                56,125
   66            2022       3,253 44          0 00        506 00         550 22      59,440 00           610 74            0 00          3,253         61,107                75,441
   67            2023       3,253 44          0 00        506 00         550 22      59,440 00           610 74            0 00          3,253         61,107                78,498
   68            2024       3,253 44          0 00        506 00         550 22      59,440 00           610 74            0 00          3,253         61,107                81,680
   69            2025       3,253 44          0 00        506 00         550 22      59,440 00           610 74            0 00          3,253         61,107                84,991
   70            2026       3,253 44          0 00        506 00         550 22      59,440 00           610 74            0 00          3,253         61,107                88,436
   71            2027       3,253 44          0 00        506 00         550 22      59,440 00           610 74            0 00          3,253         61,107                92,021
   72            2028       3,253 44          0 00        506 00         550 22      59,440 00           610 74            0 00          3,253         61,107                95,753
   73            2029       3,253 44          0 00        506 00         550 22      59,440 00           610 74            0 00          3,253         61,107                99,636
   74            2030       3,253 44          0 00        506 00         550 22      59,440 00           610 74            0 00          3,253         61,107               103,677
   75            2031       3,253 44          0 00        506 00         550 22      59,440 00           610 74            0 00          3,253         61,107               107,882
   76            2032       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               137,472
   77            2033       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               143,036
   78            2034       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               148,825
   79            2035       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               154,849
   80            2036       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               161,117
   81            2037       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               167,640
   82            2038       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               174,428
   83            2039       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               181,491
   84            2040       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               188,842
   85            2041       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               196,491
   86            2042       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               204,450
   87            2043       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               212,733
   88            2044       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               221,353
   89            2045       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               230,322
   90            2046       3,253 44          0 00        506 00         550 22      74,000 00           610 74            0 00          3,253         75,667               239,657




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