In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Case No. 09-293V
Filed: November 28, 2016
(Not to be published)
* * * * * * * * * * * * * * * * * * * RACHAEL MCCULLOCH as parent and * legal guardian of A.M., *
*
Petitioner, * Decision on Damages;
v. * Human Papillomavirus Vaccine * (“HPV”/”Gardasil”); Autoimmune SECRETARY OF HEALTH * Limbic Encephalitis; Intractable Epilepsy; AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., for petitioner. Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC for respondent.
DECISION ON DAMAGES1
Gowen, Special Master:
On May 11, 2009, Rachael McCulloch (“petitioner”) filed a petition for compensation on behalf of her minor child, A.M., pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act” or “the Program”). Petitioner alleged that as a result of receiving a Human Papillomavirus (“HPV”/”Gardasil”) vaccine on August 16, 2007, A.M. developed a severe neurological injury. On December 7, 2009, petitioner filed an 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this ruling on the United States Court of Federal Claims' website, in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 delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B), the disclosure of which would constitute an unwarranted invasion of privacy. 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 this definition, 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 (2012).
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Amended Petition alleging that the HPV vaccine caused A.M. to develop encephalitis, intractable epilepsy, and subsequent developmental delays. See Amended Petition at Preamble. The undersigned issued a Ruling on Entitlement finding petitioner entitled to compensation based on an injury caused-in-fact by a covered vaccine on May 22, 2015.
On November 28, 2016, respondent filed a Proffer on an award of compensation, indicating that petitioner has agreed to compensation as follows: $1,055,056.01 for A.M.’s lost earnings; $250,000.00 in actual and projected pain and suffering; $41,216.61 in past unreimbursable expenses; and $58,535.37 to satisfy a State of Florida Medicaid lien. See Proffer, filed Nov. 28, 2016, at 2-3.
Pursuant to the terms in the attached Proffer, attached hereto as Appendix A, the undersigned awards petitioner the following compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a):
1. A lump sum payment of $1,428,188.00, representing compensation for lost earnings ($1,055,056.01), pain and suffering ($250,000.00), and life care expenses for Year One ($123,131.99), in the form of a check payable to petitioner as guardian of A.M. for the benefit of A.M.;
2. A lump sum payment of $41,216.61, representing compensation for past unreimbursable expenses, in the form of a check payable to petitioner;
3. A lump sum payment of $58,535.37, representing compensation for satisfaction of the State of Florida Medicaid lien, payable jointly to petitioner and
Florida Agency for Health Care Administration Florida Medicaid Casualty Recovery Program P.O. 12188
Tallahassee, FL 32317-2188 Attn: Marquis Grissom
Case No: 604902
4. An amount sufficient to purchase the annuity contract described in section II, paragraph D of the Proffer, paid to the life insurance company from which the annuity will be purchased.
Proffer at 3-5.
The clerk of the court is directed to enter judgment in accordance with this decision.3
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.
3
IT IS SO ORDERED.
s/Thomas L. Gowen Thomas L. Gowen Special Master
IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
************************************* RACHAEL MCCULLOCH, parent of * A.M., *
*
Petitioner, * No. 09-293V * SPECIAL MASTER v. * THOMAS L. GOWEN
*
SECRETARY OF HEALTH AND * HUMAN SERVICES, *
*
Respondent. *
*************************************
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation1
A. Life Care Items
The respondent engaged life care planner, Linda Curtis, RN, MS, CCM, CNCLP, and
petitioner engaged Maureen Clancy, RN, BSN, CNLCP, to provide an estimation of A.M.’s
future vaccine-injury related needs. For the purposes of this proffer, the term “vaccine related”
is as described in the Special Master’s Ruling on Entitlement, filed May 22, 2015. All items of
compensation identified in the life care plan are supported by the evidence, and are illustrated by
the chart entitled Appendix A: Items of Compensation for A.M., attached hereto as Tab A.2
1 Should A.M. die prior to the entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering.
2 The chart at Tab A illustrates the annual benefits provided by 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.
Respondent proffers that A.M. should be awarded all items of compensation set forth in the life
care plan and illustrated by the chart attached at Tab A.3 Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, A.M. has suffered a loss of
earnings in the past and will not be gainfully employed in the future. Therefore, respondent
proffers that A.M. should be awarded full lost earnings as provided under the Vaccine Act, 42
U.S.C. § 300aa-15(a)(3)(B). Respondent proffers that the appropriate award for A.M.'s lost
earnings is $1,055,056.01. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that A.M. should be awarded $250,000.00 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 Unreimbursable Expenses
Evidence supplied by petitioner documents her expenditure of past unreimbursable
expenses related to A.M.'s vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $41,216.61. Petitioner agrees.
E. Medicaid Lien
Respondent proffers that A.M. should be awarded funds to satisfy a State of Florida lien
in the amount of $58,535.37, which represents full satisfaction of any right of subrogation,
3 The parties have no objection to the proffered award of damages. Assuming the Special Master issues a damages decision in conformity with this proffer, the parties intend to waive their right to seek review of such damages decision, recognizing that respondent reserves her right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Special Master’s May 22, 2015, decision finding petitioner entitled to an award under the Vaccine Act.
assignment, claim, lien, or cause of action the State of Florida may have against any individual
as a result of any Medicaid payments the State of Florida has made to or on behalf of A.M. from
the date of her eligibility for benefits through the date of judgment in this case as a result of her
vaccine-related injury suffered on or about June 8, 2007 and/or August 16, 2007, under Title
XIX of the Social Security Act.
II. Form of the Award
The parties recommend that the compensation provided to A.M. should be made through
a combination of lump sum payments and future annuity payments as described below, and
request that the Special Master's decision and the Court's judgment award the following:
A. A lump sum payment of $1,428,188.00, representing compensation for lost
earnings ($1,055,056.01), pain and suffering ($250,000.00), and life care expenses for Year One
($123,131.99), in the form of a check payable to petitioner as guardian of A.M., for the benefit of
A.M. Petitioner has been appointed as the guardian of A.M.'s estate under the State law of
Florida. If petitioner becomes unable or is removed as the guardian of the estate of A.M., any
such payment shall be made to the party or parties appointed by a court of competent jurisdiction
to serve as guardian(s)/conservator(s) of the estate of A.M. upon submission of written
documentation of such appointment to the Secretary.
B. A lump sum payment of $41,216.61, representing compensation for past
unreimbursable expenses, in the form of a check payable to petitioner.
C. A lump sum payment of $58,535.37, representing compensation for satisfaction
of the State of Florida Medicaid lien, payable jointly to petitioner and
4
Florida Agency for Health Care Administration Florida Medicaid Casualty Recovery Program P.O. 12188
Tallahassee, FL 32317-2188 Attn: Marquis Grissom
Case No: 604902
Petitioner agrees to endorse this payment to the State of Florida.
D. An amount sufficient to purchase the annuity contract,4 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, paid to the life insurance company5 from
which the annuity will be purchased.6 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 as
guardian of the estate of A.M., only so long as A.M. is alive at the time a particular payment is
4 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies.
5 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.
6 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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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.
1. Growth Rate
Respondent proffers that 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 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 six percent (6%) 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 A.M. 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 A.M.’s death.
3. Guardianship
Petitioner has filed documentation with the Court establishing that she has been
appointed as the guardian of A.M.’s estate. If petitioner becomes unable or is removed as the
guardian of the estate of A.M., any such payment shall be made to the party or parties appointed
by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of A.M.
upon submission of written documentation of such appointment to the Secretary.
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III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioner as court-appointed guardian of A.M.’s estate: $ 1,428,188.00
B. Paid to petitioner: $ 41,216.61
C. Medicaid Lien: $ 58,535.37
D. An amount sufficient to purchase the annuity contract described above in section II. D.
Respectfully submitted,
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division
CATHARINE E. REEVES Acting Deputy Director Torts Branch, Civil Division
HEATHER L. PEARLMAN Assistant Director Torts Branch, Civil Division
/s/ Debra A. Filteau Begley DEBRA A. FILTEAU BEGLEY Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Phone: (202) 616-4181
Dated: November 28, 2016
Appendix A: Items of Compensation for A.M. Page 1 of 4 Lump Sum
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation COMPENSATION G.R. * M Year 1 Years 2-4 Year 5 Year 6 Year 7 Year 8 Years 9-10 Years 11-27 2016 2017-2019 2020 2021 2022 2023 2024-2025 2026-2042 BCBS Gold Premium 6% M 3,436.80 3,436.80 BCBS Gold MOP 6% 4,000.00 4,000.00 BCBS FL Premium 6% M 5,017.92 5,017.92 5,017.92 5,017.92 5,017.92 5,017.92 BCBS FL MOP 6% 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 Medicare Part B Premium 6% M Medigap 6% M Medicare Part D 6% M PCP 6% * Neurologist 6% * Urologist 6% * Gastroenterologist 6% * Specialists 6% * Dentist 6% 100.00 100.00 100.00 100.00 100.00 100.00 100.00 ER 6% * Hospitalization 6% * MRI 6% * X-Rays 6% * Diastat 6% * Cloazepate Dipotassium 6% * Escitalopram Oxalate 6% * Vimpat 6% * Lamotrigine 200mg 6% * Lamotrigine 100mg 6% * Topiramate 6% * Omeprazole 6% * PT 4% ST 4% Shower Chair 4% 130.97 130.97 Hand Held Shower 4% 47.53 47.53 Grab Bars 4% 209.79 WC 4% * Incontinence Pants 4% M 460.67 460.67 460.67 460.67 460.67 460.67 460.67 McCulloch, 09-293V, Tab A Page 1 of 4
Appendix A: Items of Compensation for A.M. Page 2 of 4 Lump Sum
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation COMPENSATION G.R. * M Year 1 Years 2-4 Year 5 Year 6 Year 7 Year 8 Years 9-10 Years 11-27 2016 2017-2019 2020 2021 2022 2023 2024-2025 2026-2042 Chux 4% M 180.00 180.00 180.00 180.00 180.00 180.00 180.00 Hand Sanitizer 4% 35.88 35.88 35.88 35.88 35.88 35.88 35.88 Waterproof Mattress Pad 4% 80.00 80.00 80.00 80.00 80.00 80.00 80.00 YMCA 4% Music Therapy 4% M 780.00 780.00 780.00 Day Program 4% M 7,269.60 7,269.60 7,269.60 7,269.60 7,269.60 7,269.60 7,269.60 Live-in Home Care 4% M 105,120.00 105,120.00 105,120.00 105,120.00 105,120.00 105,120.00 105,120.00 Seizure Activity Monitor 4% 899.00 899.00 Intermediate Care Facility 4% M 136,875.00 Mileage: PCP 4% 4.26 4.26 4.26 4.26 4.26 4.26 4.26 Mileage: Neurologist 4% 6.38 6.38 6.38 6.38 4.26 4.26 4.26 Mileage: Urologist 4% 2.36 2.36 2.36 2.36 2.36 2.36 2.36 Mileage: Gastroenterologist 4% 2.13 2.13 2.13 2.13 Mileage: Specialists 4% Mileage: Music Therapy 4% 366.62 366.62 366.62 Lost Earnings 1,055,056.01 Pain and Suffering 250,000.00 Past Unreimb. Expenses 41,216.61 Medicaid Lien 58,535.37 Annual Totals 1,527,939.98 121,844.70 121,425.82 121,354.57 120,274.95 120,277.08 120,274.95 143,892.92 Note: Compensation Year 1 consists of the 12 month period following the date of judgment. Compensation Year 2 consists of the 12 month period commencing on the first anniversary of the date of judgment. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner, as guardian of the estate of A.M., for Year 1 life care expenses ($123,131.99), lost earnings ($1,055,056.01), and pain and suffering ($250,000.00): $1,428,188.00. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for past unreimbursable expenses: $41,216.61. As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and the State of Florida, as reimbursement of the state's Medicaid lien: $58,535.37. Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the date of judgment. Annual amounts shall increase at the rates indicated above in column G.R., compounded annually from the date of judgment. Items denoted with an asterisk (*) covered by health insurance and/or Medicare. Items denoted with an "M" payable in twelve monthly installments totaling the annual amount indicated.
McCulloch, 09-293V, Tab A Page 2 of 4
Appendix A: Items of Compensation for A.M. Page 3 of 4
ITEMS OF Compensation Compensation COMPENSATION G.R. * M Years 28-43 Years 44-Life 2043-2058 2059-Life
BCBS Gold Premium 6% M BCBS Gold MOP 6% BCBS FL Premium 6% M BCBS FL MOP 6% Medicare Part B Premium 6% M 1,461.60 1,461.60 Medigap 6% M 4,488.00 2,268.00 Medicare Part D 6% M 4,241.07 4,241.07 PCP 6% * Neurologist 6% * Urologist 6% * Gastroenterologist 6% * Specialists 6% * Dentist 6% ER 6% * Hospitalization 6% * MRI 6% * X-Rays 6% * Diastat 6% * Cloazepate Dipotassium 6% * Escitalopram Oxalate 6% * Vimpat 6% * Lamotrigine 200mg 6% * Lamotrigine 100mg 6% * Topiramate 6% * Omeprazole 6% * PT 4% ST 4% Shower Chair 4% Hand Held Shower 4% Grab Bars 4% WC 4% * Incontinence Pants 4% M McCulloch, 09-293V, Tab A Page 3 of 4
Appendix A: Items of Compensation for A.M. Page 4 of 4
ITEMS OF Compensation Compensation COMPENSATION G.R. * M Years 28-43 Years 44-Life 2043-2058 2059-Life Chux 4% M Hand Sanitizer 4% Waterproof Mattress Pad 4% YMCA 4% Music Therapy 4% M Day Program 4% M Live-in Home Care 4% M Seizure Activity Monitor 4% Intermediate Care Facility 4% M 136,875.00 136,875.00 Mileage: PCP 4% Mileage: Neurologist 4% Mileage: Urologist 4% Mileage: Gastroenterologist 4% Mileage: Specialists 4% Mileage: Music Therapy 4% Lost Earnings Pain and Suffering Past Unreimb. Expenses Medicaid Lien Annual Totals 147,065.67 144,845.67 Note: Compensation Year 1 consists of the 12 month period following the date of judgment. Compensation Year 2 consists of the 12 month period commencing on the first anniversary of the date of judgment. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner, as guardian of the estate of A.M., for Year 1 life care expenses ($123,131.99), lost earnings ($1,055,056.01), and pain and suffering ($250,000.00): $1,428,188.00. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for past unreimbursable expenses: $41,216.61. As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and the State of Florida, as reimbursement of the state's Medicaid lien: $58,535.37. Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the date of judgment. Annual amounts shall increase at the rates indicated above in column G.R., compounded annually from the date of judgment. Items denoted with an asterisk (*) covered by health insurance and/or Medicare. Items denoted with an "M" payable in twelve monthly installments totaling the annual amount indicated.
McCulloch, 09-293V, Tab A Page 4 of 4