Novarro v. Secretary of Health and Human Services

United States Court of Federal Claims·Decided August 15, 2016·No. 11-707·Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 11-707V Filed: July 19, 2016

******************************** BONYE WOLF BARONE, as Conservator * of Person and Estate of JOAN NOVARRO, * * Petitioner, * Special Master Corcoran * v. * * Damages Decision; SECRETARY OF HEALTH AND * Influenza (“Flu”) Vaccine; HUMAN SERVICES, * Guillain-Barré Syndrome (“GBS”). * Respondent. * * ********************************

Rene Gentry, George Washington University Law School Vaccine Injury Clinic, Washington, DC, for Petitioner.

Lisa Watts, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On October 25, 2011, Joan Novarro filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner3 alleges that Joan Novarro developed Guillain-Barré syndrome (“GBS”) as a result of her October 31, 2008, receipt of the influenza (“flu”) vaccine. Moreover, Petitioner alleges that Ms. Novarro experienced

1 Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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). Otherwise, the whole decision will be available to the public. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). 3 On February 18, 2014 (ECF No. 46), Petitioner moved to amend the caption to make Bonye Wolf Barone, Conservator of Person and Estate of Joan Novarro, the petitioner, and I granted the motion on April 17, 2014. ECF No. 49. residual effects of this injury for more than six months.

After a motion for a ruling on the record, I issued an entitlement decision in Petitioner’s favor. See Ruling on Entitlement, dated Nov. 12, 2014 (ECF No. 58). The parties subsequently attempted to calculate Ms. Novarro’s damages award, but experienced difficulties reaching an agreement with regarding to one item: the necessity of daily attendant care for Ms. Novarro in the skilled nursing facility to which she will be transferred after a damages award is made in this case. A hearing was held to resolve this question on March 31, 2016, and then on May 12, 2016, I issued a ruling finding that Petitioner has established the propriety of some, but not all, of the hours of attendant care requested.

On July 14, 2016, Respondent filed a status report concerning damages that contained a proffer. I have reviewed the file, and based upon that review, I conclude that the parties’ proffer (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The proffer awards:

 A lump sum payment of $661,082.54, representing compensation for life care expenses (including the attendant care awarded by my decision) expected to be incurred during the first year after judgment ($167,895.32), lost earnings ($38,570.26), pain and suffering ($250,000.00), and past unreimbursable expenses ($204,616.96), in the form of a check payable to Petitioner, as conservator of the estate of Joan Novarro for the benefit of Joan Novarro; and

 A lump sum payment of $65,123.15, representing compensation for satisfaction of the State of Connecticut Medicaid lien, payable jointly to petitioner, as conservator of the estate of Joan Novarro, and

Connecticut Department of Administrative Services 165 Capitol Avenue Hartford, CT 06106-1658 Attn: Ms. Susan Kitchens Case Name: NOVARRO, JOAN Case Number: 3665299

These amounts represent compensation for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which Petitioner is entitled.

2 I approve a Vaccine Program award in the requested amounts set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.4

IT IS SO ORDERED.

/s/ Brian H. Corcoran Brian H. Corcoran Special Master

4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review.

3 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ____________________________________ BONYE WOLF BARONE, as Conservator ) of Person and Estate of, JOAN NOVARRO, ) ) ECF Petitioner, ) ) v. ) No. 11-707V ) Special Master SECRETARY OF HEALTH ) Brian H. Corcoran AND HUMAN SERVICES, ) ) Respondent. ) )

RESPONDENT’S STATUS REPORT REGARDING DAMAGES

Respondent hereby submits the following status report concerning damages.

I. Items of Compensation

A. Life Care Items

Respondent engaged life care planner Laura Fox, MSN, RN, CNLCP and petitioner

engaged Nancy J. Bond, M.Ed., CLCP, CCM to provide an estimation of Joan Novarro’s future

vaccine-injury-related needs. A life care plan was previously filed in this case (Resp. Ex. D),

and the agreed-upon life care items are illustrated by the chart entitled “Appendix A: Proffered

Items of Compensation for Joan Novarro,” attached to this Status Report as Tab A. 1 Respondent

proffers that Joan Novarro should be awarded all items of compensation illustrated by the chart

attached at Tab A. Petitioner agrees.

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. In addition, the Special Master’s May 12, 2016, ruling awarding additional attendant care

is illustrated by the chart entitled “Appendix B: Attendant Care Awarded by Special Master for

Joan Novarro,” attached to this Status Report as Tab B. 2 Petitioner agrees.

B. Lost Earnings

The parties agree that based upon the evidence of record, Joan Novarro has suffered a

past loss of earnings. Therefore, respondent proffers that Joan Novarro should be awarded lost

earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Respondent

proffers that the appropriate award for Joan Novarro’s lost earnings is $38,570.26. Petitioner

agrees.

C. Pain and Suffering

Respondent proffers that Joan Novarro should be awarded $250,000.00 in actual pain and

suffering. See 42 U.S.C.

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Related

§ 300aa-10
42 U.S.C. § 300aa-10
§ 300aa-12
42 U.S.C. § 300aa-12(d)(4)(B)
§ 300aa-15
42 U.S.C. § 300aa-15(a)
Purposes
44 U.S.C. § 3501
§ 300a
42 U.S.C. § 300a