In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: July 20, 2017
* * * * * * * * * * * * * DONNA SCAMBY POWERS, * * UNPUBLISHED Petitioner, * * Special Master Gowen v. * No. 15-1096V * SECRETARY OF HEALTH * Proffer; Not Contesting Entitlement; AND HUMAN SERVICES, * Influenza (Flu) Vaccine; Guillain-Barré * Syndrome (GBS) Respondent. * * * * * * * * * * * * * * *
Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner. Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON PROFFER1
Gowen, Special Master:
On September 30, 2015, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered from Guillain-Barré Syndrome (GBS) as a result of an influenza vaccine administered on October 10, 2012. Petition at 1.
On June 29, 2017, respondent filed a status report along with his Rule 4(c) Report in which he states that he does not contest that petitioner is entitled to compensation in this case. Respondent’s Status Report at 1. On July 13, 2017, a ruling on entitlement was issued, finding petitioner entitled to compensation for GBS. Counsel for the parties have worked diligently with their experts and have come to a resolution of damages. Their respective life care planners have
1 Because this decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the website of the United States Court of Federal Claims, pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012). The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website. Id. 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). agreed on future care issues and costs. The parties have submitted a projection of future lost wages, which has been reduced to present value and to which they have agreed. On July 14, 2017, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $841,728.00. Proffer at 5. In the Proffer, respondent represented that petitioner agrees with the proffered award. I have reviewed the proffer and do award damages in accord with it. The Proffer is incorporated herein and made a part hereof as Appendix A. Based on the record as a whole, I find that petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner the following in compensation:
1) A lump sum payment of $841,728.00, representing compensation for lost past and future earnings ($618,595.00), pain and suffering ($173,968.00), and life care expenses for Year One ($49,165.00), in the form of a check payable to petitioner, Donna Scamby Powers.3
2) An amount sufficient to purchase an annuity contract as described in Section II. B of the Proffer attached herein as Appendix A, paid to the life insurance company from which the annuity will be purchased.
The clerk of the court is directed to enter judgment in accordance with this decision.4
IT IS SO ORDERED.
s/Thomas L. Gowen Thomas L. Gowen Special Master
3 This amount represents compensation for all damages that would be available under § 300aa-15(a). 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.
2 Case 1:15-vv-01096-UNJ Document 36 Filed 07/14/17 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF THE SPECIAL MASTERS ____________________________________ DONNA SCAMBY POWERS, ) ) Petitioner, ) ) No. 15-1096V v. ) Special Master Thomas L. Gowen ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent, )
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
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, MSN, CCM, CNCLP, and
petitioner engaged Roberta Hurley, Hurley and Econs Consulting, to provide an estimation of
Donna Scamby Powers’s (“petitioner”) future vaccine-injury related needs. The parties’
planners came to a joint consensus regarding appropriate items of care. For the purposes of this
proffer, the term “vaccine-related” is as described in respondent’s Rule 4(c) Report filed on June
29, 2017. All items of compensation identified in the agreed upon life care plan are supported
by the evidence, and are illustrated by the chart entitled Tab A: Items of Compensation for
Donna Scamby Powers, attached hereto as Tab A.1 Respondent proffers that petitioner should
1 Tab A illustrates the annual benefits provided by the agreed upon 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 Case 1:15-vv-01096-UNJ Document 36 Filed 07/14/17 Page 2 of 5
be awarded all items of compensation set forth in the agreed upon life care plan and illustrated
by the chart attached at Tab A. Petitioner agrees.
B. Lost Future Earnings
The parties agree that based upon the evidence of record, Donna Scamby Powers has
suffered a past loss of earnings and will continue to suffer a loss of earnings in the future.
Therefore, respondent proffers that petitioner should be awarded lost past and future earnings as
provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Respondent proffers that the
appropriate award for petitioner’s lost past and future earnings is $618,595.00. This amount
reflects that the award for lost future earnings has been reduced to net present value. Petitioner
agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $173,968.00 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
D. Past Un-reimbursable Expenses
Petitioner represents that she has not incurred any past un-reimbursable expenses related
to her vaccine-related injury.
E. Medicaid Lien
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: July 20, 2017
* * * * * * * * * * * * * DONNA SCAMBY POWERS, * * UNPUBLISHED Petitioner, * * Special Master Gowen v. * No. 15-1096V * SECRETARY OF HEALTH * Proffer; Not Contesting Entitlement; AND HUMAN SERVICES, * Influenza (Flu) Vaccine; Guillain-Barré * Syndrome (GBS) Respondent. * * * * * * * * * * * * * * *
Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner. Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON PROFFER1
Gowen, Special Master:
On September 30, 2015, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered from Guillain-Barré Syndrome (GBS) as a result of an influenza vaccine administered on October 10, 2012. Petition at 1.
On June 29, 2017, respondent filed a status report along with his Rule 4(c) Report in which he states that he does not contest that petitioner is entitled to compensation in this case. Respondent’s Status Report at 1. On July 13, 2017, a ruling on entitlement was issued, finding petitioner entitled to compensation for GBS. Counsel for the parties have worked diligently with their experts and have come to a resolution of damages. Their respective life care planners have
1 Because this decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the website of the United States Court of Federal Claims, pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012). The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website. Id. 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). agreed on future care issues and costs. The parties have submitted a projection of future lost wages, which has been reduced to present value and to which they have agreed. On July 14, 2017, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $841,728.00. Proffer at 5. In the Proffer, respondent represented that petitioner agrees with the proffered award. I have reviewed the proffer and do award damages in accord with it. The Proffer is incorporated herein and made a part hereof as Appendix A. Based on the record as a whole, I find that petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner the following in compensation:
1) A lump sum payment of $841,728.00, representing compensation for lost past and future earnings ($618,595.00), pain and suffering ($173,968.00), and life care expenses for Year One ($49,165.00), in the form of a check payable to petitioner, Donna Scamby Powers.3
2) An amount sufficient to purchase an annuity contract as described in Section II. B of the Proffer attached herein as Appendix A, paid to the life insurance company from which the annuity will be purchased.
The clerk of the court is directed to enter judgment in accordance with this decision.4
IT IS SO ORDERED.
s/Thomas L. Gowen Thomas L. Gowen Special Master
3 This amount represents compensation for all damages that would be available under § 300aa-15(a). 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.
2 Case 1:15-vv-01096-UNJ Document 36 Filed 07/14/17 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF THE SPECIAL MASTERS ____________________________________ DONNA SCAMBY POWERS, ) ) Petitioner, ) ) No. 15-1096V v. ) Special Master Thomas L. Gowen ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent, )
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
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, MSN, CCM, CNCLP, and
petitioner engaged Roberta Hurley, Hurley and Econs Consulting, to provide an estimation of
Donna Scamby Powers’s (“petitioner”) future vaccine-injury related needs. The parties’
planners came to a joint consensus regarding appropriate items of care. For the purposes of this
proffer, the term “vaccine-related” is as described in respondent’s Rule 4(c) Report filed on June
29, 2017. All items of compensation identified in the agreed upon life care plan are supported
by the evidence, and are illustrated by the chart entitled Tab A: Items of Compensation for
Donna Scamby Powers, attached hereto as Tab A.1 Respondent proffers that petitioner should
1 Tab A illustrates the annual benefits provided by the agreed upon 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 Case 1:15-vv-01096-UNJ Document 36 Filed 07/14/17 Page 2 of 5
be awarded all items of compensation set forth in the agreed upon life care plan and illustrated
by the chart attached at Tab A. Petitioner agrees.
B. Lost Future Earnings
The parties agree that based upon the evidence of record, Donna Scamby Powers has
suffered a past loss of earnings and will continue to suffer a loss of earnings in the future.
Therefore, respondent proffers that petitioner should be awarded lost past and future earnings as
provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Respondent proffers that the
appropriate award for petitioner’s lost past and future earnings is $618,595.00. This amount
reflects that the award for lost future earnings has been reduced to net present value. Petitioner
agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $173,968.00 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
D. Past Un-reimbursable Expenses
Petitioner represents that she has not incurred any past un-reimbursable expenses related
to her vaccine-related injury.
E. Medicaid Lien
Petitioner represents that there are no outstanding Medicaid liens against her.
2 Case 1:15-vv-01096-UNJ Document 36 Filed 07/14/17 Page 3 of 5
II. Form of the Award
The parties recommend that the compensation provided to Donna Scamby Powers should
be made through a combination of a one-time lump sum payment and future annuity payments as
described below, and request that the Special Master’s decision and the Court’s judgment award
the following for all compensation2 available under 42 U.S.C. § 300aa-15(a).
Respondent proffers and petitioner agrees that an award of compensation include the
following elements:
A. A lump sum payment of $841,728.00, (representing compensation for lost past and
future earnings ($618,595.00), pain and suffering ($173,968.00) and life care expenses for Year
One ($49,165.00)), in the form of a check payable to petitioner; and
B. An amount sufficient to purchase an annuity contract,3 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, and paid to the life insurance company4
2 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings and future projected pain and suffering and the parties reserve the right to move the Court for appropriate relief. 3 To satisfy the conditions set forth herein, in respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies.
4 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.
3 Case 1:15-vv-01096-UNJ Document 36 Filed 07/14/17 Page 4 of 5
from which the annuity will be purchased.5 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 Donna
Scamby Powers, only so long as Ms. Powers is alive at the time a particular payment is due. At
the Secretary’s sole discretion, the periodic payments may be provided to petitioner in monthly,
quarterly, annual or other installments. The “annual structured settlement benefits” 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.
2. Life-contingent annuity
Petitioner will continue to receive the annuity payments from the Life Insurance
Company only so long as petitioner is alive at the time that a particular payment is due.
Petitioner’s estate shall provide written notice to the Secretary of Health and Human Services
5 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.
4 Case 1:15-vv-01096-UNJ Document 36 Filed 07/14/17 Page 5 of 5
and the Life Insurance Company within twenty (20) days of Ms. Powers’ death.
3. Guardianship Issues
Petitioner is a legally competent adult, and aforementioned payments will be made
directly to petitioner.
III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioner: $841,728.00
B. An amount sufficient to purchase the annuity contract described above in
Section II. B.
Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division
CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division
ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division
s/Linda S. Renzi LINDA S. RENZI Senior Trial Counsel Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-4133 DATE: July 14, 2017
5 Case 1:15-vv-01096-UNJ Document 36-1 Filed 07/14/17 Page 1 of 1 TAB A
Pet. Donna Scamby Powers D.O.B. 09/25/1953
DATE: 07/06/17 TIME: 12:35 PM
SUMMARY OF LIFE CARE ITEMS - RESPONDENT'S LIFE CARE PLAN dated May 2, 2017
ITEM OF CARE Insurance Medical Ancillary Equipment Medications Home Transportation Home TOTALS TOTALS TOTALS OF Care Services Services Modifications of Items of Items 6.0% & 4.0% ITEMS with a 6.0% with a 4.0% AFTER APPLYING Growth Rate Growth Rate THE GROWTH GROWTH RATE 6.0% 6.0% 4.0% 4.0% 4.0% 4.0% 4.0% 4.0% RATE
AGE YEAR
64 2017 2,000.00 815.00 1,680.00 15,950.33 1,260.00 9,196.00 439.00 17,825.00 2,815 46,350 49,165 65 2018 0.00 863.90 291.20 867.78 1,310.40 9,497.28 45.66 0.00 864 12,012 12,876 66 2019 4,244.50 337.08 0.00 902.49 0.00 9,877.17 47.48 0.00 4,582 10,827 15,409 67 2020 4,499.17 357.30 0.00 938.59 0.00 10,272.26 49.38 0.00 4,856 11,260 16,117 68 2021 4,769.12 378.74 0.00 976.14 0.00 10,683.15 51.36 0.00 5,148 11,711 16,859 69 2022 5,055.27 401.47 0.00 1,015.18 0.00 11,110.47 53.41 0.00 5,457 12,179 17,636 70 2023 5,358.58 425.56 0.00 1,055.79 0.00 11,554.89 55.55 0.00 5,784 12,666 18,450 71 2024 5,680.10 451.09 0.00 1,098.02 0.00 12,017.09 57.77 0.00 6,131 13,173 19,304 72 2025 6,020.90 478.15 0.00 1,141.94 0.00 12,497.77 60.08 0.00 6,499 13,700 20,199 73 2026 6,382.16 506.84 0.00 1,187.62 0.00 12,997.68 62.48 0.00 6,889 14,248 21,137 74 2027 6,765.09 537.25 0.00 1,235.13 0.00 13,517.59 64.98 0.00 7,302 14,818 22,120 75 2028 7,170.99 569.49 0.00 1,284.53 0.00 14,058.29 67.58 0.00 7,740 15,410 23,151 76 2029 7,601.25 603.66 0.00 1,335.91 0.00 14,620.63 70.29 0.00 8,205 16,027 24,232 77 2030 8,057.33 639.88 0.00 1,389.35 0.00 15,205.45 73.10 0.00 8,697 16,668 25,365 78 2031 8,540.77 678.27 0.00 1,444.92 0.00 15,813.67 76.02 0.00 9,219 17,335 26,554 79 2032 9,053.21 718.97 0.00 1,502.72 0.00 16,446.22 79.06 0.00 9,772 18,028 27,800 80 2033 9,596.41 762.11 0.00 1,562.83 0.00 17,104.06 82.22 0.00 10,359 18,749 29,108 81 2034 10,172.19 807.83 0.00 1,625.34 0.00 17,788.23 85.51 0.00 10,980 19,499 30,479 82 2035 10,782.52 856.30 0.00 1,690.35 0.00 18,499.76 88.93 0.00 11,639 20,279 31,918 83 2036 11,429.47 907.68 0.00 1,757.97 0.00 19,239.75 92.49 0.00 12,337 21,090 33,427 84 2037 12,115.24 962.14 0.00 1,828.29 0.00 20,009.34 96.19 0.00 13,077 21,934 35,011
145,294 13,059 1,971 41,791 2,570 292,007 1,799 17,825 158,353 357,963 516,316
This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990
Powers Resp Life Care Plan and Wage Loss REV5 Itemized Growth Rate Applied 06 05 17 PAGE 1