Johnson v. Secretary of Health and Human Services

United States Court of Federal Claims·Decided April 7, 2015·No. 13-389·Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 13-389V (Filed: March 17, 2015)

* * * * * * * * * * * * * * * ELIZABETH JOHNSON, * UNPUBLISHED, * Special Master Dorsey Petitioner, * * v. * Decision on Proffer; Damages; * Tetanus Diphtheria (Td) Vaccine; SECRETARY OF HEALTH * Long Thoracic Nerve Palsy; Table AND HUMAN SERVICES, * Injury; Brachial Neuritis. * Respondent. * * * * * * * * * * * * * * * * * Ronald Craig Homer, Conway, Homer & Chin-Caplan, PC, Boston, MA, for petitioner. Claudi Barnes Gangi, United States Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

On July 11, 2013, Elizabeth Johnson (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program,2 42 U.S.C. §§ 300aa-1 to -34 (2006), for injuries allegedly suffered as a result of a tetanus diphtheria (“Td”) vaccination administered to her on July 7, 2010. Petition at 1. Petitioner alleged that as a result of receiving the Td vaccine, she suffers from long thoracic nerve palsy. Id.

On November 20, 2013, respondent filed the Rule 4(c) report recommending that

1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal Claims, 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)). As provided by Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). 2 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-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.

1 compensation be awarded to petitioner. Respondent concluded that petitioner suffered a Table brachial neuritis and stated that there was not a preponderance of the evidence that the brachial neuritis was due to factors unrelated to the vaccination. See Respondent’s Rule 4 report at 4. A damages Order was issued on November 21, 2013.

On March 16, 2015, respondent filed a Proffer on Award of Compensation (“Proffer”). Respondent proffers that based upon her review of the evidence of record, petitioner should be awarded the following items of compensation: (1) Life Care Plan: respondent proffers that petitioner be awarded all items set forth in the life care plan illustrated by the chart attached to the Proffer at Tabs A and B; (2) Lost Future Earnings: the parties agree that petitioner will be able to engage in gainful employment and that petitioner is not entitled to future lost earnings; (3) Pain and Suffering: respondent proffers that petitioner should be awarded $145,000.00, in actual and projected pain and suffering, (4) Past Unreimbursable Expenses: respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $6,559.10, and (5) Medicaid Lien: petitioner represents that there are no outstanding Medicaid liens related to her vaccine-related injury. Petitioner agrees with the proffered award for each item of compensation.

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 the following:

A. A lump sum payment of $162,850.10, in the form of a check payable to petitioner representing life care expenses for Year 1 ($11,291.00), past un- reimbursed expenses ($6,559.10), and pain and suffering ($145,000.00), and

B. An amount sufficient to purchase an annuity contract, subject to the conditions described in the Proffer and the attachments to that Proffer.

Proffer ¶ II.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT herewith.3

IT IS SO ORDERED.

s/ Nora Beth Dorsey Nora Beth Dorsey Special Master

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

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

___________________________________ ) ELIZABETH JOHNSON, ) ) Petitioner, ) ) No. 13-389V v. ) Special Master Moran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES ) ) Respondent, ) ___________________________________ )

RESPONDENT'S PROFFER ON DAMAGES

Respondent submits the following recommendations regarding items of compensation to

be awarded to petitioner under the Vaccine Act.

I. Items of Compensation

A. Life Care Items

Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLCP, and

petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of Elizabeth

Johnson’s future vaccine-injury related needs. All items identified in the agreed life care plan

dated February 4, 2015, are supported by the evidence and are illustrated by the chart entitled

Tab A: Summary of Life Care Items. 1 Respondent proffers Elizabeth Johnson (“petitioner”)

should be awarded all items of compensation that are set forth in the agreed life care plan and

illustrated by the chart attached as Tab A. Petitioner agrees. Respondent further proffers that the

appropriate growth rate for life care items of compensation should be four percent (4.0%) for

1 The chart at Tab A illustrates the annual benefits as contained in 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. non-medical items and six percent (6.0%) for medical items, compounded annually from the date

of judgment, as set forth in Tab B: Annuity Funding Portfolio. Petitioner agrees.

B. Lost Earnings

The parties agree that based upon the evidence of record, Elizabeth Johnson will be able

to engage in gainful employment. Therefore, respondent proffers that Elizabeth Johnson is not

entitled to receive future lost earnings compensation provided for 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 $145,000.00 in actual and

projected pain and suffering. This amount reflects that the award for projected pain and

suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner

agrees.

D. Past Unreimbursed Expenses

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

expenses related to her vaccine-related injury. Respondent proffers that the petitioner is entitled

to past un-reimbursed expenses in the amount of $6,559.10. Petitioner agrees.

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