2015, Special Master Denise Vowell issued a decision finding that petitioners were entitled to compensation.
On May 29, 2018, respondent filed a Proffer on Award of Compensation (“Proffer”). In the Proffer, respondent represented that petitioners agree with the proffered award. Proffer at 2- 3. 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 petitioner:
(1) A lump sum payment of $1,228,911.64, representing compensation for lost future earnings ($921,885.04), pain and suffering ($225,000.00), and life care expenses expected to be incurred during the first year after judgment ($82,026.60), in the form of a check made payable to petitioners as court- appointed guardian(s)/conservator(s) of M.W.’s estate.
(2) A lump sum payment in the amount of $658,747.40, representing compensation for past unreimbursable expenses, in the form of a check payable to petitioners.
(3) An amount sufficient to purchase the annuity contract described in section II.C. of the Proffer.
Proffer at 3-4.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT herewith.4
IT IS SO ORDERED.
s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master
4 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review.
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
MARY KATE WRIGHT and GARRY WRIGHT, ) as legal representatives of a minor child, M.W., ) ) Petitioners, ) ) v. ) No. 12-423V ) Chief Special Master Nora Beth Dorsey SECRETARY OF ) HEALTH AND HUMAN SERVICES, ) ) Respondent. ) )
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On June 28, 2012, Mary Kate Wright and Garry Wright (“petitioners”) filed this claim
under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act” or “Act”), as
amended, 42 U.S.C. §§ 300aa-1 to 34, on behalf of their son, M.W., alleging that the diphtheria-
tetanus-acellular-pertussis, inactivated poliovirus, and hemophilus influenza B combination
vaccine that he received on July 6, 2009, caused encephalopathy. Following a hearing, Special
Master Denise Vowell issued a written opinion on September 21, 2015, concluding that
petitioners were entitled to vaccine compensation after finding that M.W. suffered an
encephalopathy that satisfied the criteria set forth in the Vaccine Injury Table. 42 C.F.R.
§ 100.3.
I. Items of Compensation
A. Life Care Items
The respondent engaged life care planner, M. Virginia Walton, RN, MSN, FNP, CNCLP,
and petitioners engaged Roberta J. Hurley, BS. Ed., and Terry K. Arnold, RN, CDMS, CRRN,
CLCP, CNLCP, to provide an estimation of M.W.’s future vaccine-injury related needs. For the purposes of this proffer, the term “vaccine related” is as described in the Chief Special Master’s
Ruling Finding Entitlement, filed September 21, 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 M.W., attached hereto as Tab A. 1 Respondent proffers that M.W.
should be awarded all items of compensation set forth in the life care plan and illustrated by the
chart attached at Tab A. 2 Petitioners agree.
B. Lost Future Earnings
The parties agree that based upon the evidence of record, M.W. will not be gainfully
employed in the future. Therefore, respondent proffers that M.W. should be awarded 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 M.W.’s lost future earnings is $921,885.04. Petitioners
agree.
C. Pain and Suffering
Respondent proffers that M.W. should be awarded $225,000.00 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). 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. 2 The parties have no objection to the proffered award of damages. Assuming the Chief 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(f), to seek review of the Special Master’s September 21, 2015, decision finding petitioners entitled to an award under the Vaccine Act. This right accrues following entry of judgment.
2 D. Past Unreimbursable Expenses
Evidence supplied by petitioners documents their expenditure of past unreimbursable
expenses related to M.W.’s vaccine-related injury. Respondent proffers that petitioners should
be awarded past unreimbursable expenses in the amount of $658,747.40. Petitioners agree.
II. Form of the Award
The parties recommend that the compensation provided to M.W. should be made through
a combination of lump sum payments and future annuity payments as described below, and
request that the Chief Special Master’s decision and the Court’s judgment award the following:
A. A lump sum payment of $1,228,911.64, representing compensation for lost future
earnings ($921,885.04), pain and suffering ($225,000.00), and life care expenses for Year One
($82,026.60), in the form of a check payable to petitioners as guardian(s)/conservator(s) of the
estate of M.W., for the benefit of M.W. No payments shall be made until petitioners provide
respondent with documentation establishing that they have been appointed as the
guardian(s)/conservator(s) of M.W.’s estate. If petitioners are not authorized by a court of
competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of M.W., 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 M.W. upon submission of written
documentation of such appointment to the Secretary.
B. A lump sum payment of $658,747.40, representing compensation for past
unreimbursable expenses, in the form of a check payable to petitioners.
3 C. An amount sufficient to purchase the 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, paid to the life insurance company 4 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
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2015, Special Master Denise Vowell issued a decision finding that petitioners were entitled to compensation.
On May 29, 2018, respondent filed a Proffer on Award of Compensation (“Proffer”). In the Proffer, respondent represented that petitioners agree with the proffered award. Proffer at 2- 3. 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 petitioner:
(1) A lump sum payment of $1,228,911.64, representing compensation for lost future earnings ($921,885.04), pain and suffering ($225,000.00), and life care expenses expected to be incurred during the first year after judgment ($82,026.60), in the form of a check made payable to petitioners as court- appointed guardian(s)/conservator(s) of M.W.’s estate.
(2) A lump sum payment in the amount of $658,747.40, representing compensation for past unreimbursable expenses, in the form of a check payable to petitioners.
(3) An amount sufficient to purchase the annuity contract described in section II.C. of the Proffer.
Proffer at 3-4.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT herewith.4
IT IS SO ORDERED.
s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master
4 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review.
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
MARY KATE WRIGHT and GARRY WRIGHT, ) as legal representatives of a minor child, M.W., ) ) Petitioners, ) ) v. ) No. 12-423V ) Chief Special Master Nora Beth Dorsey SECRETARY OF ) HEALTH AND HUMAN SERVICES, ) ) Respondent. ) )
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On June 28, 2012, Mary Kate Wright and Garry Wright (“petitioners”) filed this claim
under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act” or “Act”), as
amended, 42 U.S.C. §§ 300aa-1 to 34, on behalf of their son, M.W., alleging that the diphtheria-
tetanus-acellular-pertussis, inactivated poliovirus, and hemophilus influenza B combination
vaccine that he received on July 6, 2009, caused encephalopathy. Following a hearing, Special
Master Denise Vowell issued a written opinion on September 21, 2015, concluding that
petitioners were entitled to vaccine compensation after finding that M.W. suffered an
encephalopathy that satisfied the criteria set forth in the Vaccine Injury Table. 42 C.F.R.
§ 100.3.
I. Items of Compensation
A. Life Care Items
The respondent engaged life care planner, M. Virginia Walton, RN, MSN, FNP, CNCLP,
and petitioners engaged Roberta J. Hurley, BS. Ed., and Terry K. Arnold, RN, CDMS, CRRN,
CLCP, CNLCP, to provide an estimation of M.W.’s future vaccine-injury related needs. For the purposes of this proffer, the term “vaccine related” is as described in the Chief Special Master’s
Ruling Finding Entitlement, filed September 21, 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 M.W., attached hereto as Tab A. 1 Respondent proffers that M.W.
should be awarded all items of compensation set forth in the life care plan and illustrated by the
chart attached at Tab A. 2 Petitioners agree.
B. Lost Future Earnings
The parties agree that based upon the evidence of record, M.W. will not be gainfully
employed in the future. Therefore, respondent proffers that M.W. should be awarded 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 M.W.’s lost future earnings is $921,885.04. Petitioners
agree.
C. Pain and Suffering
Respondent proffers that M.W. should be awarded $225,000.00 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). 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. 2 The parties have no objection to the proffered award of damages. Assuming the Chief 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(f), to seek review of the Special Master’s September 21, 2015, decision finding petitioners entitled to an award under the Vaccine Act. This right accrues following entry of judgment.
2 D. Past Unreimbursable Expenses
Evidence supplied by petitioners documents their expenditure of past unreimbursable
expenses related to M.W.’s vaccine-related injury. Respondent proffers that petitioners should
be awarded past unreimbursable expenses in the amount of $658,747.40. Petitioners agree.
II. Form of the Award
The parties recommend that the compensation provided to M.W. should be made through
a combination of lump sum payments and future annuity payments as described below, and
request that the Chief Special Master’s decision and the Court’s judgment award the following:
A. A lump sum payment of $1,228,911.64, representing compensation for lost future
earnings ($921,885.04), pain and suffering ($225,000.00), and life care expenses for Year One
($82,026.60), in the form of a check payable to petitioners as guardian(s)/conservator(s) of the
estate of M.W., for the benefit of M.W. No payments shall be made until petitioners provide
respondent with documentation establishing that they have been appointed as the
guardian(s)/conservator(s) of M.W.’s estate. If petitioners are not authorized by a court of
competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of M.W., 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 M.W. upon submission of written
documentation of such appointment to the Secretary.
B. A lump sum payment of $658,747.40, representing compensation for past
unreimbursable expenses, in the form of a check payable to petitioners.
3 C. An amount sufficient to purchase the 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, paid to the life insurance company 4 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 petitioners
as guardian(s)/conservator(s) of the estate of M.W., only so long as M.W. 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 at Tab 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.
3 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. M.W. 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. 5 Petitioners authorize the disclosure of certain documents filed by the petitioners 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 1. Growth Rate
Respondent proffers that a four percent (4%) growth rate should be applied to all non-
medical life care items, and a five percent (5%) 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 five percent (5%) compounded annually from the date of
judgment for medical items. Petitioners agree.
2. Life-Contingent Annuity
Petitioners will continue to receive the annuity payments from the Life Insurance
Company only so long as M.W. 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 M.W.’s death.
3. Guardianship
No payments shall be made until petitioners provide respondent with documentation
establishing that they have been appointed as the guardian(s)/conservator(s) of M.W.’s estate. If
petitioners are not authorized by a court of competent jurisdiction to serve as guardian(s)/
conservator(s) of the estate of M.W., 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 M.W. upon submission of written documentation of such appointment to the Secretary.
5 III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioners as court-appointed guardian(s)/conservator(s) of M.W.’s estate: $ 1,228,911.64
B. Paid to petitioners: $ 658,747.40
C. An amount sufficient to purchase the annuity contract described above in section II. C.
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/ LARA A. ENGLUND LARA A. ENGLUND Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington D.C. 20044-0146 Tel: (202) 307-3013 E-mail: lara.a.englund@usdoj.gov
Dated: May 29, 2018