Afzali v. Secretary of Health and Human Services

Opinion

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS No. 11-390V

Filed: March 7, 2014 (Not to be Published)

**************************** N.A., a minor, by his Father * and Natural Guardian, WALLI AFZALI, * Damages Decision Based on * Proffer; Measles, Mumps, Rubella Petitioner, * Vaccine; MMR; Encephalitis;

v. * Table Injury.

*

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

*

Respondent. *

****************************

Clifford J. Shoemaker, Esq., Shoemaker and Associates, Vienna, VA, for petitioner. Jennifer L. Reynaud, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Vowell, Chief Special Master:

On June 14, 2011, Walli Afzali 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”] alleging that his son, NA, suffered encephalitis within five to fifteen days of receiving the measles, mumps, rubella vaccine and that the vaccine was the cause of NA’s injury. Petition at Preamble.

On December 10, 2012, respondent filed a report pursuant to Vaccine Rule 4(c)

in which she conceded that petitioner established the requirements for compensation 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims' website, in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), a party has 14 days to identify and move to delete medical or other information, that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the requirements of that provision, I will delete 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 (2006).

under the Vaccine Act. Respondent’s Report at 4. Thereafter, on January 2, 2013, I issued a Ruling on Entitlement, finding petitioner entitled to compensation based on a Vaccine Table injury. See 42 C.F.R. § 100.3(a)(III)(B). On the same day, I issued an order regarding damages.

On March 6, 2014, respondent filed a Proffer on Award of Compensation [“Proffer”], which indicated that the petitioner agreed to the compensation amount.

Pursuant to the terms stated in the attached Proffer, I award the following:

A. A lump sum payment of $1,153,833.20, representing compensation for lost future earnings ($645,427.52), pain and suffering ($250,000.00), and life care expenses for Year One ($258,405.68), in the form of a check payable to petitioner as guardian/conservator of N.A., for the benefit of N.A., and subject to the terms of the attached Proffer; and

B. A lump sum payment of $187,773.89, representing compensation for satisfaction of the State of Illinois Medicaid lien, payable jointly to petitioner and:

Illinois Department of Healthcare and Family Services Bureau of Collections Technical Recovery Section 401 S. Clinton, 5th Floor Chicago, Illinois 60607-3800 Attn: Mr. Anthony Graham Case No: 96-204-0000CS9504

Petitioner agrees to endorse this payment to the State of Illinois.

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

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

IT IS SO ORDERED.

s/Denise K. Vowell Denise K. Vowell 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.

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

N.A., a minor by his Father and Natural Guardian, WALLI AFZALI,

Petitioners, No. 11-390V Chief Special Master Vowell v. ECF

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

A. Life Care Items

The respondent engaged life care planner, Ginger Walton, RN, MSN, FNP, CNCLP, and

petitioner engaged Tresa Johnson, RN, BSN, CNLCP, to provide an estimation of N.A.’s future

vaccine injury-related needs. For the purposes of this proffer, the term “vaccine injury” is as

described in the Chief Special Master’s ruling on entitlement filed January 2, 2013. All items of

compensation identified in the joint life care plan are supported by the evidence, and are

illustrated by the chart entitled Appendix A: Items of Compensation for N.A., attached hereto as

Tab A. 1 Respondent proffers that N.A. should be awarded all items of compensation set forth in

the joint life care plan and illustrated by the chart attached at Tab A. Petitioner agrees.

1 The chart at Tab A illustrates the annual benefits provided by the joint 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.

B. Lost Future Earnings

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

employed in the future. Therefore, respondent proffers that N.A. 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 N.A’s lost future earnings is $645,427.52. Petitioner

agrees.

C. Pain and Suffering

On February 3, 2014, the Chief Special Master issued a Ruling on Damages for Pain and

Suffering, finding that N.A. is entitled to the statutory cap of $250,000.00 in actual and projected

pain and suffering.

D. Past Unreimbursable Expenses

Petitioner has not provided evidence of any expenditures of past unreimbursable

expenses related to N.A.’s vaccine-injury. Respondent therefore proffers that petitioner should

be awarded no past unreimbursable expenses. Petitioner agrees.

E. Medicaid Lien

Respondent proffers that N.A. should be awarded funds to satisfy a State of Illinois

Medicaid lien in the amount of $187,773.89, which represents full satisfaction of any right of

subrogation, assignment, claim, lien, or cause of action the State of Illinois may have against any

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

N.A. from the date of his eligibility for benefits through the date of judgment in this case as a

result of his vaccine-injury suffered on or about June 19, 2008, under Title XIX of the Social

Security Act.

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II. Form of the Award

The parties recommend that the compensation provided to N.A. should be made through

a combination of lump sum payments and future annuity payments as described below, and

request that the Court’s decision and the Court’s judgment award the following:

A. A lump sum payment of $1,153,833.20, representing compensation for lost future

earnings ($645,427.52), pain and suffering ($250,000.00), and life care expenses for Year One

($258,405.68), in the form of a check payable to petitioner as guardian/conservator of N.A., for

the benefit of N.A. No payments shall be made until petitioner provides respondent with

documentation establishing that he has been appointed as the guardian/ conservator of N.A.’s

estate. If petitioner is not authorized by a court of competent jurisdiction to serve as

guardian/conservator of the estate of N.A., any such payment shall be made to the party or

parties appointed by a court of competent jurisdiction to serve as guardian/conservator of the

estate of N.A. upon submission of written documentation of such appointment to the Secretary.

B. A lump sum payment of $187,773.89, representing compensation for satisfaction

of the State of Illinois Medicaid lien, payable jointly to petitioner and:

Illinois Department of Healthcare and Family Services Bureau of Collections Technical Recovery Section 401 S. Clinton, 5th Floor Chicago, Illinois 60607-3800 Attn: Mr. Anthony Graham Case No: 96-204-0000CS9504

Petitioner agrees to endorse this payment to the State of Illinois.

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

described below, that will provide payments for the life care items contained in the joint life care

plan, as illustrated by the chart at Tab A attached hereto, paid to the life insurance company 3

from 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 (or

any other party who is appointed) as guardian(s)/conservator(s) of the estate of N.A., only so

long as N.A. 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.

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;

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.

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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 N.A. 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 N.A.’s death.

3. Guardianship

No payments shall be made until petitioner provides respondent with documentation

establishing that he has been appointed as the guardian/conservator of N.A.’s estate. If petitioner

is not authorized by a court of competent jurisdiction to serve as guardian/ conservator of the

estate of N.A., any such payment shall be made to the party or parties appointed by a court of

competent jurisdiction to serve as guardian/conservator of the estate of N.A. upon submission of

written documentation of such appointment to the Secretary.

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.

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III. Summary of Recommended Payments Following Judgment

A. Lump sum paid to petitioner as court-appointed guardian/conservator of N.A.’s estate: $1,153,833.20

B. Medicaid Lien: $ 187,773.89

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

Respectfully submitted,

STUART F. DELERY Acting Assistant Attorney General

RUPA BHATTACHARYYA Director Torts Branch, Civil Division

VINCENT J. MATANOSKI Deputy Director Torts Branch, Civil Division

VORIS E. JOHNSON, JR. 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 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Telephone: (202) 305-1586

Date: