Anthony v. Secretary of Health and Human Services

Federal Claims

Anthony v. Secretary of Health and Human Services

United States Court of Federal Claims·Decided March 24, 2016·No. 14-680·Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS

******************** * EDWARD ANTHONY, * * No. 14-680 Petitioner, * Special Master Christian J. Moran

*

v. * Filed: March 2, 2016

*

SECRETARY OF HEALTH * Proffer; damages; influenza (“flu”) AND HUMAN SERVICES, * vaccine; shoulder injury related to * vaccine administration; SIRVA Respondent. *

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

Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner; Gordon Shemin, U.S. Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION1

On July 30, 2014, Edward Anthony filed a petition under the National Childhood Vaccine Injury Act, 42 C.F.R. §300aa-10 through 34 (2012), alleging that he suffered a chronic left shoulder injury related to his receipt of an influenza (“flu”) vaccination in his left shoulder on October 31, 2011.

On October 28, 2014, a ruling found Mr. Anthony entitled to compensation.

After substantial negotiations, filings, and a hearing on the pain and suffering component of damages, on February 22, 2016, respondent filed a status report regarding damages. Petitioner does not object to the status report. Petitioner and respondent were able to agree on petitioner’s past and future medical care, and thus the status report proffers those amounts. Disagreement

1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website.

remains about the magnitude of damages for petitioner’s pain and suffering. The undersigned, however, held a hearing on February 2, 2016 on the pain and suffering issue, and subsequent orders on February 16 and 19, 2016, decided the petitioner’s amount of compensation for pain and suffering. Based on the February 19, 2016 order, petitioner and respondent are able to proffer the net present value of petitioner’s pain and suffering.

The parties agree to the damages outlined in the February 22, 2016, status report, and the undersigned finds the damages reasonable.

Damages outlined in the status report:

1. A lump sum payment of $291,842.00 representing compensation for life care expenses expected to be incurred during the first year after judgment ($42,530.00), pain and suffering ($248,540.00), and past unreimbursable expenses ($772.00), in the form of a check payable to petitioner, Edward Anthony.

2. 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 charts at Appendix A, attached hereto, paid to the life insurance company3 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, Edward Anthony, only so long as Edward Anthony is alive at the time a

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.

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.

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 Edward Anthony’s death. At the Secretary’s sole discretion, the periodic payments may be provided to petitioner in monthly, quarterly, annual or other installments. The totals set forth in Appendix 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. A four percent (4%) growth rate should be applied to all non-medical life care items, and a six percent (6%) growth rate should be applied to all medical life care items. Thus, the benefits illustrated in the chart at Appendix 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 six percent (6%) compounded annually from the date of judgment for medical items.

3. The above amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 14-680 according to this decision and the attached stipulation.5

Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357-

6360.

IT IS SO ORDERED.

s/Christian J. Moran Christian J. Moran Special Master

5 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.

Pet. Edward Anthony D.O.B. 07/06/1949

DATE: 02/17/16 TIME: 07:22 PM

SUMMARY OF LIFE CARE ITEMS - AGREED LIFE CARE PLAN dated February 15, 2016

ITEM OF CARE Insurance Medical Ancillary Supplies Trans- Home TOTALS TOTALS TOTALS OF Care Services portation Services of Items of Items 4.0% & 6.0% ITEMS with a 6.0% with a 4.0% & APPLYING Growth Rate Growth Rate THE GROWTH GROWTH RATE 6.0% 6.0% 6.0% 6.0% 4.0% 4.0% RATE

AGE YEAR

67 2016 1,454.00 11,640.11 2,894.50 619.96 670.00 23,295.87 16,609 23,966 42,530 68 2017 5,035.86 0.00 480.00 120.37 25.00 23,280.96 5,636 23,306 31,541 69 2018 5,035.86 0.00 480.00 120.37 25.00 23,280.96 5,636 23,306 32,929 70 2019 5,035.86 0.00 480.00 120.37 25.00 23,280.96 5,636 23,306 34,380 71 2020 5,035.86 0.00 480.00 120.37 25.00 23,280.96 5,636 23,306 35,898 72 2021 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 36,804 73 2022 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 38,422 74 2023 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 40,114 75 2024 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 41,883 76 2025 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 43,733 77 2026 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 45,667 78 2027 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 47,689 79 2028 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 49,804 80 2029 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 52,016 81 2030 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 54,330 82 2031 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 56,750 83 2032 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 59,282 84 2033 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 61,931 85 2034 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 64,703 86 2035 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 67,603 87 2036 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 70,638

102,171 11,640 4,815 3,027 1,170 488,915 121,653 490,085 1,008,645

16.70% 1.90% 0.79% 0.49% 0.19% 79.92% 100.00%

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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS

******************** * EDWARD ANTHONY, * * No. 14-680 Petitioner, * Special Master Christian J. Moran

*

v. * Filed: March 2, 2016

*

SECRETARY OF HEALTH * Proffer; damages; influenza (“flu”) AND HUMAN SERVICES, * vaccine; shoulder injury related to * vaccine administration; SIRVA Respondent. *

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

Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner; Gordon Shemin, U.S. Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION1

On July 30, 2014, Edward Anthony filed a petition under the National Childhood Vaccine Injury Act, 42 C.F.R. §300aa-10 through 34 (2012), alleging that he suffered a chronic left shoulder injury related to his receipt of an influenza (“flu”) vaccination in his left shoulder on October 31, 2011.

On October 28, 2014, a ruling found Mr. Anthony entitled to compensation.

After substantial negotiations, filings, and a hearing on the pain and suffering component of damages, on February 22, 2016, respondent filed a status report regarding damages. Petitioner does not object to the status report. Petitioner and respondent were able to agree on petitioner’s past and future medical care, and thus the status report proffers those amounts. Disagreement

1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website.

remains about the magnitude of damages for petitioner’s pain and suffering. The undersigned, however, held a hearing on February 2, 2016 on the pain and suffering issue, and subsequent orders on February 16 and 19, 2016, decided the petitioner’s amount of compensation for pain and suffering. Based on the February 19, 2016 order, petitioner and respondent are able to proffer the net present value of petitioner’s pain and suffering.

The parties agree to the damages outlined in the February 22, 2016, status report, and the undersigned finds the damages reasonable.

Damages outlined in the status report:

1. A lump sum payment of $291,842.00 representing compensation for life care expenses expected to be incurred during the first year after judgment ($42,530.00), pain and suffering ($248,540.00), and past unreimbursable expenses ($772.00), in the form of a check payable to petitioner, Edward Anthony.

2. 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 charts at Appendix A, attached hereto, paid to the life insurance company3 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, Edward Anthony, only so long as Edward Anthony is alive at the time a

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.

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.

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 Edward Anthony’s death. At the Secretary’s sole discretion, the periodic payments may be provided to petitioner in monthly, quarterly, annual or other installments. The totals set forth in Appendix 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. A four percent (4%) growth rate should be applied to all non-medical life care items, and a six percent (6%) growth rate should be applied to all medical life care items. Thus, the benefits illustrated in the chart at Appendix 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 six percent (6%) compounded annually from the date of judgment for medical items.

3. The above amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 14-680 according to this decision and the attached stipulation.5

Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357-

6360.

IT IS SO ORDERED.

s/Christian J. Moran Christian J. Moran Special Master

5 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.

Pet. Edward Anthony D.O.B. 07/06/1949

DATE: 02/17/16 TIME: 07:22 PM

SUMMARY OF LIFE CARE ITEMS - AGREED LIFE CARE PLAN dated February 15, 2016

ITEM OF CARE Insurance Medical Ancillary Supplies Trans- Home TOTALS TOTALS TOTALS OF Care Services portation Services of Items of Items 4.0% & 6.0% ITEMS with a 6.0% with a 4.0% & APPLYING Growth Rate Growth Rate THE GROWTH GROWTH RATE 6.0% 6.0% 6.0% 6.0% 4.0% 4.0% RATE

AGE YEAR

67 2016 1,454.00 11,640.11 2,894.50 619.96 670.00 23,295.87 16,609 23,966 42,530 68 2017 5,035.86 0.00 480.00 120.37 25.00 23,280.96 5,636 23,306 31,541 69 2018 5,035.86 0.00 480.00 120.37 25.00 23,280.96 5,636 23,306 32,929 70 2019 5,035.86 0.00 480.00 120.37 25.00 23,280.96 5,636 23,306 34,380 71 2020 5,035.86 0.00 480.00 120.37 25.00 23,280.96 5,636 23,306 35,898 72 2021 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 36,804 73 2022 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 38,422 74 2023 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 40,114 75 2024 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 41,883 76 2025 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 43,733 77 2026 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 45,667 78 2027 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 47,689 79 2028 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 49,804 80 2029 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 52,016 81 2030 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 54,330 82 2031 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 56,750 83 2032 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 59,282 84 2033 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 61,931 85 2034 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 64,703 86 2035 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 67,603 87 2036 5,035.86 0.00 0.00 120.37 25.00 23,280.96 5,156 23,306 70,638

102,171 11,640 4,815 3,027 1,170 488,915 121,653 490,085 1,008,645

16.70% 1.90% 0.79% 0.49% 0.19% 79.92% 100.00%

Anthony v. HHS, No. 14-680V Appendix A to Respondent's Status Report of February 22, 2016 Pg. 1

ANNUITY FUNDING PORTFOLIO AGREED LIFE CARE PLAN dated February 15, 2016

4.0 % and 6.0% GROWTH RATES

DATE: 02/17/16 TIME: 07:22 PM

Pet. Edward Anthony D.O.B. 07/06/1949 Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8

Settlement Item TOTAL ANNUAL CASH & ANNUITY ANNUITY ANNUITY ANNUAL CUMULATIVE Starting Amount MEDICAL STRUCTURED ANNUITY 5,793 25,209 540 SAFETY SAFETY Inflation Factor CARE NEEDS SETTLEMENT LUMP 6.00% 4.00% 6.00% MARGIN MARGIN Beginning Year 2016 BENEFITS SUMS 2017 2017 2017 2016 2016 Ending Year 2036 LIFE LIFE 2020 2036 2036

TOTAL S/S Cash & Deferred Deferred Deferred Safety Cum.Safety AGE YEAR NEEDS TOTAL Lump Sums Annuity Annuity Annuity Margin Margin

67 2016 42,530 42,530 42,530 0 0 68 2017 31,541 31,542 5,793 25,209 540 1 2 69 2018 32,929 32,930 6,141 26,217 572 1 3 70 2019 34,380 34,382 6,509 27,266 607 2 5 71 2020 35,898 35,899 6,900 28,357 643 2 6 72 2021 36,804 36,804 7,314 29,491 1 7 73 2022 38,422 38,423 7,752 30,671 1 8 74 2023 40,114 40,115 8,217 31,897 1 9 75 2024 41,883 41,884 8,711 33,173 1 10 76 2025 43,733 43,733 9,233 34,500 1 11 77 2026 45,667 45,667 9,787 35,880 1 12 78 2027 47,689 47,690 10,374 37,315 1 12 79 2028 49,804 49,805 10,997 38,808 1 13 80 2029 52,016 52,017 11,657 40,360 1 14 81 2030 54,330 54,331 12,356 41,975 1 15 82 2031 56,750 56,751 13,097 43,654 1 16 83 2032 59,282 59,283 13,883 45,400 1 17 84 2033 61,931 61,932 14,716 47,216 1 18 85 2034 64,703 64,704 15,599 49,105 1 19 86 2035 67,603 67,604 16,535 51,069 1 20 87 2036 70,638 70,639 17,527 53,112 1 21

ITEMIZED TOTALS 1,008,645 1,008,667 42,530 213,099 750,676 2,362 21 21

Anthony v. HHS, No. 14-680V Appendix A to Respondent's Status Report of February 22, 2016 Pg. 2

Anthony v. Secretary of Health and Human Services, (uscfc 2016).

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