Ferguson v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: November 10, 2025

* * * * * * * * * * * * * JACOB FERGUSON, * PUBLISHED

*

Petitioner, * No. 17-1737V

*

v. * Special Master Dorsey

*

SECRETARY OF HEALTH * Damages Award; Proffer; AND HUMAN SERVICES, * Splenectomy; Immune Thrombocytopenia * Purpura (“ITP”).

Respondent. *

*

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

Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner. Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES BASED ON PROFFER 1

On November 6, 2017, Jacob Ferguson 2 (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42 U.S.C. § 300aa-10 et seq. (2018). 3 Petitioner alleged he suffered from immune

1 Because this Decision contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims’ website and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2 The petition was initially filed by April Ferguson on behalf of her then minor son, Jacob Ferguson; however, he reached the age of majority during the pendency of this case, and the case caption was amended. Order dated July 18, 2022 (ECF No. 110). 3 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2018). All citations in this Ruling to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.

2

thrombocytopenia purpura (“ITP”) as the result of a tetanus-diphtheria-acellular pertussis (“Tdap”) and meningococcal conjugate vaccinations administered on October 23, 2014. Petition at ¶¶ 1, 5-6 (ECF No. 1). On December 10, 2021, the undersigned issued a Ruling on Entitlement, finding Petitioner was entitled to compensation. Ruling on Entitlement dated Dec. 10, 2021 (ECF No. 78).

On July 18, 2025, the undersigned issued a Ruling on Damages. Ruling on Damages dated Jul. 18, 2025 (ECF No. 205). The Ruling awarded Petitioner (1) $250,000.00 for pain and suffering and (2) and an amount sufficient to fund the life care plan items agreed upon by the parties as well as health insurance premium and maximum out of pocket costs awarded. Id. at 48.

On November 7, 2025, Respondent filed a Proffer on Award of Compensation (“Proffer”), attached hereto as Appendix A. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. 4 Proffer at 4. 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 Petitioner:

(1) An amount sufficient to purchase an annuity contract described in Section A of the Proffer, paid to the life insurance company from which the annuity will be purchased (the “Life Insurance Company”).

(2) A lump sum payment of $262,646.32 (representing $250,000.00 for actual pain and suffering and $12,646.32 for future life care plan expenses for the first year following the entry of judgment) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner.

(3) A lump sum payment of $38,270.50, representing compensation for satisfaction of the State of Ohio Medicaid Lien, in the form of a check jointly payable to Petitioner and:

Ohio Department of Medicaid Ohio Tort Recovery Unit 5475 Rings Road, Suite 125 Dublin, OH 43017

Petitioner agrees to endorse this payment to the State.

Proffer at 1, 4. This amount represents all elements of compensation to which Petitioner is entitled under § 15(a). Id. at 4.

4 On November 7, 2025, Petitioner filed a document entitled “Petitioner’s Acceptance of Proffer” stating: “Petitioner has reviewed the Proffer and informs the court that he accepts the terms of Respondent’s Proffer.” Pet. Acceptance of Proffer, filed Nov. 7, 2025 (ECF No. 217).

3

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT herewith. 5

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Special Master

5 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review.

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

JACOB FERGUSON,

Petitioner,

v. No. 17-1737V Special Master Nora Beth Dorsey SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On December 10, 2021, the Court issued a Ruling on Entitlement, finding petitioner

entitled to compensation. ECF No. 78. On July 18, 2025, the Court issued a Ruling on

Damages. ECF No. 205. Respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to

seek review of the Special Master’s December 10, 2021 Ruling on Entitlement and/or July 18,

2025 Ruling on Damages. Notwithstanding respondent preserving his right to seek review,

respondent recognizes the Ruling on Damages as the current law of the case, and based on the

directives in the Ruling on Damages, respondent now proffers that petitioner receive an award as

follows:

A. Life Care Items Beginning on the First Anniversary of Judgment.

Respondent proffers an amount sufficient to purchase an annuity contract described

below in this Section A of this Proffer, paid to the life insurance company from which the

annuity will be purchased (the “Life Insurance Company”).1

1 Notwithstanding references herein to “the Life Insurance Company” or “the annuity contract,” to satisfy the conditions set forth herein, in respondent’s sole and absolute discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies.

The Secretary of Health and Human Services agrees to purchase an annuity contract from

the Life Insurance Company for the benefit of petitioner, pursuant to which the Life Insurance

Company will agree to make payments periodically to petitioner for the following items of

compensation:

(a) For future insurance expenses, as well as home services expenses averaging $7.00 per year, beginning on the first anniversary of the date of judgment, the annual amounts reflected in Tab A,2 appended hereto, in the column titled “Totals of Items with a 4.0% Growth Rate,” to be paid up until the anniversary of the date of judgment in the year 2069, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment;

(b) For future insurance expenses, beginning on the anniversary of the date of judgment in year 2069, an annual amount of $4,373.40 to be paid up until the anniversary of the date of judgment in the year 2070, and then beginning on the anniversary of the date of judgment in year 2070 an annual amount of $1,021.40 to be paid for the remainder of petitioner’s life, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment;

(c) For future home services expenses, beginning on the anniversary of the date of judgement in year 2069, an annual amount of $7.00 to be paid for the remainder of petitioner’s life, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment;

Moreover, 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.

2 Tab A reflects all payments to be made through year 2081, petitioner’s normal life expectancy. The annual amount in Tab A for year 2025 is excluded from the annuity. The amount representing year 2025 expenses is included in Section B of this Proffer as a direct lump sum payment.

(d) For future medical care expenses, beginning on the anniversary of the date of judgement in year 2069, an annual amount of $153.98 to be paid for the remainder of petitioner’s life, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment; and

(e) For future medication expenses, beginning on the anniversary of the date of judgement in year 2069, an annual amount of $224.00 to be paid for the remainder of petitioner’s life, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment.

At the sole discretion of the Secretary of Health and Human Services, the periodic

payments may be provided to petitioner in monthly, quarterly, annual or other installments. The

“annual amounts” set forth above describe only the total yearly sum to be paid to petitioner and

do not require that the payment be made in one annual installment. 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. Written notice to the Secretary of Health and

Human Services and the Life Insurance Company shall be provided within twenty (20) days of

petitioner’s death.

The annuity contract will be owned solely and exclusively by the Secretary of Health and

Human Services and will be purchased as soon as practicable following the entry of a judgment

in conformity with this Proffer. The parties agree that upon the purchase of the annuity contract,

the Secretary of Health and Human Services and the United States of America are released from

any and all obligations with respect to future annuity payments.

Petitioner authorizes respondent to disclose documents filed by 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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B. Remaining Compensation for Damages Available under 42 U.S.C. § 300aa-15(a).

In addition to the compensation proffered above in Section A of this Proffer, respondent

proffers the following, representing all remaining compensation for damages available under 42

U.S.C. § 300aa-15(a):3

(1) A lump sum payment of $262,646.32 to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner;4 and

(2) A lump sum payment of $38,270.50, representing compensation for satisfaction of the State of Ohio Medicaid lien, in the form of a check payable jointly to petitioner and

Ohio Department of Medicaid Ohio Tort Recovery Unit 5475 Rings Road, Suite 125 Dublin, OH 43017.

Petitioner agrees to endorse this payment to the State.

Petitioner has reviewed the foregoing and agrees with the proffered award as stated above

in Sections A and B of this Proffer.5

Respectfully submitted,

BRETT A. SHUMATE Assistant Attorney General

C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division 3 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 damages. 4 This sum consists of $12,646.32 for future life care plan expenses for the first year following the entry of judgment and $250,000.00 for actual pain and suffering. These amounts reflect the compensation directed by the Court’s July 18, 2025 Ruling on Damages and do not reflect respondent’s position regarding appropriate compensation. As stated above, respondent does not waive his right to seek review of the Special Master’s Ruling on Entitlement and/or Ruling on Damages. 5 This proffer does not include any award for attorneys’ fees and costs that may be awarded pursuant to 42 U.S.C. § 300aa-15(e).

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HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division

ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

s/ RYAN D. PYLES RYAN D. PYLES 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) 616-9847

DATED: November 7, 2025

TAB A

Jacob Ferguson D.O.B. 03/03/2004

DATE: 08/11/25 TIME: 07:40 PM

SUMMARY OF LIFE CARE ITEMS - LIFE CARE PLAN dated August 8,2025

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

AGE YEAR

21 2025 12,611.32 0.00 0.00 35.00 12,646 12,646 22 2026 12,611.32 0.00 0.00 7.00 12,618 13,123 23 2027 12,611.32 0.00 0.00 7.00 12,618 13,648 24 2028 12,611.32 0.00 0.00 7.00 12,618 14,194 25 2029 12,633.76 0.00 0.00 7.00 12,641 14,788 26 2030 12,745.96 0.00 0.00 7.00 12,753 15,516 27 2031 12,880.72 0.00 0.00 7.00 12,888 16,307 28 2032 13,099.48 0.00 0.00 7.00 13,106 17,247 29 2033 13,279.12 0.00 0.00 7.00 13,286 18,183 30 2034 13,368.88 0.00 0.00 7.00 13,376 19,038 31 2035 13,503.52 0.00 0.00 7.00 13,511 19,999 32 2036 13,638.16 0.00 0.00 7.00 13,645 21,006 33 2037 13,722.40 0.00 0.00 7.00 13,729 21,981 34 2038 13,812.16 0.00 0.00 7.00 13,819 23,010 35 2039 13,857.04 0.00 0.00 7.00 13,864 24,008 36 2040 13,901.92 0.00 0.00 7.00 13,909 25,049 37 2041 13,946.80 0.00 0.00 7.00 13,954 26,135 38 2042 13,991.68 0.00 0.00 7.00 13,999 27,268 39 2043 14,081.56 0.00 0.00 7.00 14,089 28,541 40 2044 14,171.32 0.00 0.00 7.00 14,178 29,872 41 2045 14,305.96 0.00 0.00 7.00 14,313 31,361 42 2046 14,434.96 0.00 0.00 7.00 14,442 32,910 43 2047 14,614.60 0.00 0.00 7.00 14,622 34,652 44 2048 14,839.00 0.00 0.00 7.00 14,846 36,591 45 2049 15,102.76 0.00 0.00 7.00 15,110 38,731 46 2050 15,417.04 0.00 0.00 7.00 15,424 41,118 47 2051 15,770.56 0.00 0.00 7.00 15,778 43,743 48 2052 16,174.48 0.00 0.00 7.00 16,181 46,657 49 2053 16,572.88 0.00 0.00 7.00 16,580 49,718 50 2054 17,021.80 0.00 0.00 7.00 17,029 53,107 51 2055 17,465.08 0.00 0.00 7.00 17,472 56,669 52 2056 17,953.36 0.00 0.00 7.00 17,960 60,583 53 2057 18,447.16 0.00 0.00 7.00 18,454 64,738 54 2058 18,980.20 0.00 0.00 7.00 18,987 69,273 55 2059 19,513.24 0.00 0.00 7.00 19,520 74,066 56 2060 20,091.28 0.00 0.00 7.00 20,098 79,310 57 2061 20,674.84 0.00 0.00 7.00 20,682 84,877 58 2062 21,297.64 0.00 0.00 7.00 21,305 90,930

Ferguson LCP dated 08 08 25.xlsx PAGE 1

TAB A

Jacob Ferguson D.O.B. 03/03/2004

DATE: 08/11/25 TIME: 07:40 PM

SUMMARY OF LIFE CARE ITEMS - LIFE CARE PLAN dated August 8,2025

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

AGE YEAR

59 2063 21,606.28 0.00 0.00 7.00 21,613 95,937 60 2064 22,229.20 0.00 0.00 7.00 22,236 102,650 61 2065 22,767.88 0.00 0.00 7.00 22,775 109,343 62 2066 23,121.40 0.00 0.00 7.00 23,128 115,482 63 2067 23,564.68 0.00 0.00 7.00 23,572 122,403 64 2068 23,833.96 0.00 0.00 7.00 23,841 128,753 65 2069 4,373.40 153.98 224.00 7.00 4,758 26,726 66 2070 1,021.40 153.98 224.00 7.00 1,406 8,215 67 2071 1,021.40 153.98 224.00 7.00 1,406 8,544 68 2072 1,021.40 153.98 224.00 7.00 1,406 8,885 69 2073 1,021.40 153.98 224.00 7.00 1,406 9,241 70 2074 1,021.40 153.98 224.00 7.00 1,406 9,610 71 2075 1,021.40 153.98 224.00 7.00 1,406 9,995 72 2076 1,021.40 153.98 224.00 7.00 1,406 10,394 73 2077 1,021.40 153.98 224.00 7.00 1,406 10,810 74 2078 1,021.40 153.98 224.00 7.00 1,406 11,243 75 2079 1,021.40 153.98 224.00 7.00 1,406 11,692 76 2080 1,021.40 153.98 224.00 7.00 1,406 12,160 77 2081 1,021.40 153.98 224.00 7.00 1,406 12,646

729,510 2,002 2,912 427 734,851 2,215,322

99.27% 0.27% 0.40% 0.06% 100.00%

This Report was generated using Sequoia Settlement Services, Inc Software © 1990

Ferguson LCP dated 08 08 25.xlsx PAGE 2