Moriarty v. Secretary of Health and Human Services

United States Court of Federal Claims·Decided September 7, 2018·No. 03-2876·Unpublished

Opinion

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

******************** * MARIE LOUISE and STEPHEN H. * MORIARTY as Conservators of * EILISE MORIARTY, * * No. 03-2876V Petitioner, * Special Master Christian J. Moran * v. * Filed: August 9, 2018 * SECRETARY OF HEALTH * Damages; decision based on proffer; AND HUMAN SERVICES, * MMR vaccine; autoimmune epileptic * encephalopathy. Respondent. * ******************** *

Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for Petitioner; Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION AWARDING DAMAGES1

On December 31, 2003, the Moriartys filed a petition seeking compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-1 et seq., alleging that the measles-mumps-rubella (MMR) vaccination their daughter, Eilise, received on January 1, 2001, caused her to suffer epileptic encephalopathy. On February 10, 2017, Judge Wheeler of the Court of Federal Claims ruled that the Moriartys were entitled to compensation under the Vaccine Act. Judge Wheeler remanded the case to the undersigned to determine damages. 130 Fed. Cl. 573.

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. Calculating damages for this case presented a number of atypical challenges due to the complexity and age of the case. However, the parties and counsel dutifully worked towards a Proffer on Award of Compensation, which was filed on August 6, 2018. Based upon the record as a whole, the undersigned finds the Proffer reasonable and that the petitioner is entitled to an award as stated in the Proffer. Pursuant to the attached Proffer, attached as Appendix B, the court awards petitioner:

1. A lump sum payment of $1,367,111.31, representing compensation for lost earnings ($1,032,153.27), pain and suffering ($250,000.00), and life care expenses for Year One ($84,958.04), in the form of a check payable to petitioners as court-appointed guardian(s)/ conservator(s) of Eilise Moriarty, for the benefit of Eilise Moriarty. No payments shall be made until petitioners provide respondent with documentation establishing that they have been appointed as the guardian(s)/conservator(s) of Eilise Moriarty's estate. If petitioners are not authorized by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of Eilise Moriarty, 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 Eilise Moriarty upon submission of written documentation of such appointment to the Secretary; and

2. A lump sum payment of $200,000.00, representing compensation for past unreimbursable expenses, in the form of a check payable to petitioners.

3. An amount sufficient to purchase the annuity contract, subject to the conditions described in the attached Proffer (Appendix B), that will provide payments for the life care items contained in the life care plan, as illustrated by the chart (Appendix A), paid to the life insurance company from which the annuity will be purchased. 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 petitioners as guardian(s)/conservator(s) of the estate of Eilise Moriarty, only so long as Eilise Moriarty is alive at the time a particular payment is due. At the Secretary's sole discretion, the periodic payments may be provided to petitioners in monthly, quarterly, annual or other installments. The "annual amounts" set forth in the chart in Appendix A describe only the total yearly sum to be paid to petitioners and do not require that the payment be made in one annual installment.

These amounts reflect all elements of compensation to which petitioner would be entitled under 42 U.S.C. §300aa-15(a). The Clerk’s Office is instructed:

(1) To enter judgment in case 03-2876V according to this decision and the attached Proffer;

(2) To provide this decision to the presiding judge pursuant to Vaccine Rule 28.1(a).

Any questions may be directed to my law clerk, Matthew Ginther, at (202) 357-6360.

IT IS SO ORDERED.

s/Christian J. Moran Christian J. Moran Special Master Appendix A: Items of Compensation for Eilise Moriarty Page 1 of 2 Lump Sum Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Years 7-10 Year 11 2018 2019 2020 2021 2022 2023 2024-2027 2028 Care First MOP 5% 1,500.00 1,500.00 1,500.00 1,500.00 Medicare Part B Premium 5% M 1,608.00 1,608.00 1,608.00 1,608.00 Medicare Part B Deductible 5% Medicare Advantage 5% M 360.00 360.00 360.00 360.00 Medicare Supp 5% M Rx 5% 100.00 100.00 100.00 100.00 PCP 5% * 80.00 80.00 80.00 80.00 Mileage: PCP 4% 18.72 18.72 18.72 18.72 18.72 Vision Therapy 5% 3,360.00 Mileage: Vision Therapy 4% 86.40 Vison Therapy Eval 5% 420.00 Neuropsych Testing 4% 2,850.00 Mileage: Neuropsych Testing 4% 14.40 Counseling 4% * 540.00 540.00 540.00 Mileage: Counseling 4% 43.20 43.20 43.20 43.20 24.92 Care Mngt 4% M 3,000.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 OT Eval 4% 190.00 190.00 OT 4% * 2,160.00 2,160.00 Mileage: OT 4% 158.76 158.76 ST 4% * 10,830.00 1,710.00 Mileage: ST 4% 466.56 155.52 Voc Rehab & Supp Employ 4% M 15,978.69 2,427.48 2,427.48 2,427.48 2,427.48 2,427.48 Voc Rehab & Supp Employ 4% 2,022.90 674.20 674.20 Attendant Care/Residential Care 4% M 59,860.00 59,860.00 54,325.00 54,325.00 54,325.00 92,564.00 92,564.00 92,564.00 Lost Earnings 1,032,153.27 Pain and Suffering 250,000.00 Past Unreimbursable Expenses 200,000.00 Annual Totals 1,567,111.31 67,296.20 73,365.61 59,814.40 60,984.12 101,202.38 99,313.68 99,853.68 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 the court appointed guardian(s) of the estate of Eilise Moriarty for the benefit of Eilise Moriarty, for Yr 1 life care expenses ($84,958.04), lost earnings ($1,032,153.27), and pain and suffering ($250,000.00): $1,367,111.31. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioners for past unreimbursable expenses: $200,000.00. 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. Appendix A: Items of Compensation for Eilise Moriarty Page 2 of 2

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