Moody v. Secretary of Health and Human Services

United States Court of Federal Claims·Decided June 24, 2014·No. 1:13-vv-00190·Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 13-190V (Filed: May 30, 2014)

* * * * * * * * * * * * * * * TORY MOODY and SARAH MOODY, * UNPUBLISHED Parents of minor child, VEM, * Special Master Dorsey * Petitioners, * * v. * * Decision on Proffer; Damages; SECRETARY OF HEALTH * Measles, Mumps, Rubella AND HUMAN SERVICES, * (MMR) vaccine; Varicella vaccine; * Table Encephalopathy. Respondent. * * * * * * * * * * * * * * * * * David Porter Murphy, Greenfield, IN, for petitioners. Heather Lynn Pearlman, United States Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

On March 12, 2012, Tory Moody and Sarah Moody (“petitioners”) filed a petition on behalf of a minor, VEM, pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006). The petition alleges that VEM received a measles, mumps, rubella (“MMR”) and varicella vaccines on April 1, 2010, and suffered “febrile status epilepticus after immunizations with subsequent decline, and now with intractable epilepsy which was caused-in-fact by the MMR and Varicella vaccinations . . . .” Petition at 2, 5.

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. Respondent has conceded that petitioners have satisfied all legal prerequisites for compensation under the Vaccine Act and recommends that compensation be awarded to petitioners. Respondent’s Report at 2, 4-5, filed June 11, 2013.

Informed by respondent’s concession that an award of damages is appropriate, the undersigned finds that petitioners are entitled to compensation under the Vaccine Act.

On May 29, 2014, respondent filed a Proffer on Award of Compensation (“Proffer”). In the Proffer, respondent represented that petitioners agree with the proffered award. Based on the record as a whole, the undersigned finds that petitioners are entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioners:

A. A lump sum payment of $864,746.00, in the form of a check payable to petitioners, as guardians/conservators of VEM’s estate, for the benefit of VEM. No payments shall be made until petitioners provide the Secretary with documentation establishing the appointment of petitioners as the guardians/conservators of VEM’s estate. If petitioners are not authorized by a court of competent jurisdiction to serve as guardians/conservators of the estate of VEM, 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 VEM upon submission of written documentation of such appointment to the Secretary.

B. A lump sum payment of $3,747.89, representing compensation for past unreimbursable expenses, payable to Tory Moody and Sarah Moody, petitioners.

C. A lump sum payment of $800,033.55, representing the trust seed which consists of the present year cost of five years of VEM’s non-medical life care items ($547,877.82) for the years 2048 through 2052 plus Year One life care expenses ($252,155.73), payable to PEOPLESBANK, a Codorus Valley Company of York, Pennsylvania, to establish an irrevocable reversionary trust for the benefit of VEM, by and among the United States, as Grantor, and PEOPLESBANK, a Codorus Valley Company of York, Pennsylvania, as Trustee and petitioners, as Guardians/Conservators.

D. A lump sum payment of $108,846.13, representing compensation for satisfaction of the State of Indiana Medicaid lien, payable jointly to petitioners as guardians/conservators of the Estate of VEM and Indiana Medicaid:

2 Indiana Medicaid HP Enterprise Services Attn: TPL Casualty Dept. P.O. Box 7262 Indianapolis, IN 46207

Petitioners agree to endorse this payment to Indiana Medicaid.

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

TORY MOODY and SARAH MOODY, Parents of minor child, VEM,

Petitioners, No. 13-190V v. Special Master Dorsey ECF SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

A. Life Care Items

The parties engaged life care planners to provide an estimation of VEM’s future vaccine-

injury related needs, and the parties’ planners came to a joint consensus regarding appropriate

items of care. All items of compensation identified in the joint life care plan, filed on May 22,

2014 as Respondent’s Exhibit A, are supported by the evidence, and are illustrated by the chart

entitled Items of Compensation for VEM, attached hereto as Tab A. 1 Respondent proffers that

VEM should be awarded all items of compensation set forth in the joint life care plan and

illustrated by the chart attached at Tab A. Petitioners agree.

1 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.

1 B. Lost Future Earnings

The parties agree that based upon the evidence, VEM will never be gainfully employed.

Therefore, respondent proffers that VEM should be awarded full 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 VEM’s lost future earnings is $614,746.00 at net present value. Petitioners agree.

C. Pain and Suffering

Respondent proffers that VEM 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.

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Related

§ 300aa
42 U.S.C. § 300aa
§ 300aa-1
42 U.S.C. § 300aa-1
§ 300aa-15
42 U.S.C. § 300aa-15(a)(3)(B)
Purposes
44 U.S.C. § 3501
§ 300a
42 U.S.C. § 300a