# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS



### * * * * * * * * * * * * * * * * * * * * *

ANA ORTEGA

, *

* No. 12

- 703 V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: August 1 3 , 2014

*

SECRETARY OF HEALTH * Damages; decision based on proffer;

AND HUMAN SERVICES, * influenza (“flu”) vaccination;

* shoulder injury.

Respondent. *

* * * * * * * * * * * * * * * * * * * * *

Ronald C. Homer

, Conway, Homer & Chin

- Caplan, P.C.

, Boston, MA

, for

petitioner;

Tara J. Kilfoyle , United States Department of Justice, Washington, DC, for

respondent.

UNPUBLISHED DECISION AWARDING DAMAGES 1



### On October 17, 2012, Ana Ortega filed a petition seeking compensation

under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa

- 1

et seq., alleging that influenza (“flu”) vaccination caused her to suffer a shoulder

in jury

. M s. Ortega was found entitled to compensation under the Vaccine Act.

Ruling

, 20 13 WL 5819659 (Fed. Cl. Spec. Mstr. Oct. 4, 2013 ).

On August 5 , 2014 , respondent filed a Proffer on Award of Compensation,

to which petitioner agrees . Based upon the record as a whole, the special master

finds the proffer reasonable and that petitioner is entitled to an award as stated in

1 The E

- Government Act of 2002, Pub. L. No. 107

- 347, 116 Stat. 2899, 2913 (Dec. 17,

2002), 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 i nformation 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.2



### the Proffer. Pu rsuant to the Proffer, attached hereto as “Appendix A”, the court

awards petitioner:

A. A lump sum payment of $ 317,146.70

, representing life care expenses

for Year 1 ($21,899.00), compensation for lost future earnings

($133,978.00), compensation for past unreimbursed expenses

($773.71) and pain and suffering ($160,487.00), in the form of a

check payable to Ana Ortega; and

B. An amount sufficient to purchase an annuity contract, subject to the

conditions described in the attached proffer (attached as Appendix

A), that will provide payments for the life care items contained in the

life care plan, as illustr ated by the proffer’s chart, and paid to the life

insurance company from which the annuity will be purchase d.

Compensation for Year Two (b eginning on the first anniversary of

the date of judgment) and all subsequent payments shall be provided

through respondent’s purchase of an annuity, which annuity will

make payments directly to the petitioner, Ana Ortega, only so long as

Ana Ortega is alive at the time a particular payment is due. The

“annual amounts” set forth in the proffer’s chart describe the t otal

year sum to be paid and do not require that the payment be made in

one single payment.

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.

Any questions may be directed to my law clerk, Marc Langston , at (202)

357

- 63 92

.

IT IS SO ORDERED.

s/ Christian J. Moran

Christian J. Moran

Special MasterIN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

)

ANA ORTEGA, )

)

Petitioner, )

) No. 12

- 703V

v. ) Special Master Christian J. Moran

) ECF

)

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

Respondent. )

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

A. L ife Care Items

The respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLCP , and

petitioner en gaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of petitioner’s

future vaccine

- injury related needs. For the purposes of this proffer, the term “vaccine injury” is

as described in the S pecial M aster’s Ruling on Entitlement issued on October 4, 2013

. All items

identified in the joint life care plan are supported by the evidence and are illustrated by the chart

entitled Appendix A: Items of Compensation for Ana Ortega , attached hereto as Tab A 1

.

Respondent proffers Ana Ortega should be awarde d all items of compensation set forth in the

joint life care plan and illustrated by the chart attached a t Tab A. Petitioner agrees.

Respondent further proffers that the appropriate growth rate for life care items of

1 The chart at Tab A illustrates the annual benefits provided by the joint 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 1:12-vv-00703-UNJ Document 61 Filed 08/05/14 Page 1 of 6compensation should be four percent (4.0%) for non

- medical items and six percent (6.0%) for

medical items, compounded annually from the date of judgment, as set forth in Tab B: Annuity

Funding Portfolio. Petitioner agrees.

B. L ost Earnings

The parties agree that based upon the evidence in the record, Ana Ortega has suffered a

loss of earnings related to her vaccine injury and that it is unlikely that she will be gainfully

employed in the future. Therefore, respondent proffers that petitioner should be awarded

compensation for actual and an ticipated loss of earnings as provided under the Vaccine Act, 42

U.S.C. § 300aa

- 15(a)(3)(A). Respondent proffers that the appropriate award for Ana Ortega’s

past and future lost earnings is $133,978.00

. Petitioner agrees.

C. P ain and Suffering

Respondent proffers that Ana Ortega should be awarded $160,487.00 in actual and

projected pain and suffering. 2 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). Pe titioner

agrees.

D. P ast Unreimbursable Expenses

Evidence supplied by petitioner documen ts her expenditure of past unreimbursable

expenses related to her vaccine

- related injury. Respondent proffers that the petitioner is entitled

to past un

- reimbursed exp enses in the amount of $773.71 . Petitioner agrees.

2 Should petitioner die prior to entry of judgment, the parties reserve the right to move

the Court for appropriate relief. In particular, respondent would oppose any award for future

medical expenses, future lost earnings, and future pain and suffering.

2 Case 1:12-vv-00703-UNJ Document 61 Filed 08/05/14 Page 2 of 6E. M edicaid Lien

The New York City Human Resources Administration has represented to counsel for

petitioner and respondent that there are no outstanding Medicaid liens against petitioner. Based

upon t his information, p etitioner represents that there are no outstanding Medicaid liens against

her. Petitioner agrees.

F. A ttorney’s Fees and Costs

This proffer does not address final attorneys’ fees and costs. Petitioner is entitled to

reasonable attor neys’ fees and costs, to be determined at a later date upon petitioner filing

substantiating documentation.

II. FORM OF THE AWARD

The parties recommend that the compensation provided to Ana Ortega for her future

medical care needs should be made through a combination of lump sum payments and future

annuity payments as described below, and request that the S pecial M aster’s decision and the

Court’s judgment reflect the following items of compensation.

Respondent proffers and Petitioner agrees that an award of compensation include the

following elements:

A. A lump sum payment of $ 317,146.70

, representing life care expenses for Year 1

( $21,899.00 ), compensation for lost future earnings ($133,978.00) , compensation for past un

reimbursed expenses ($773.71) and pain and suffering ($160,487.00), in the form of a check

payable to Ana Ortega.

B. An amount sufficient to purchase an annuity contract, 3 subject to the conditions

3 In respondent’s discretion, respondent may purchase one or more annuity contracts

3 Case 1:12-vv-00703-UNJ Document 61 Filed 08/05/14 Page 3 of 6described 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 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 payments shall be provided through

respondent’s purchase of an annuity, which annuity will make payments directly to the

petitioner, Ana Ortega, only so long as Ana Ortega is alive at the time a particular payment is

due. The “annual amounts” set forth in Tab B de scribe the total year sum to be paid and do not

require that the payment be made in one single payment.

The parties agree that Ana Ortega is a competent adult and that no

Guardians/Conservators of her Estate will be required.

1. Growth Rates

Respondent pro ffers that a four percent (4.0%) growth rate should be applied to all non

medical life care items and a six percent (6.0%) growth rate should be applied to all medical life

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.

5 Petitioner authorize s 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 1:12-vv-00703-UNJ Document 61 Filed 08/05/14 Page 4 of 6care items. The benefits illustrated in the chart at Tab B that are to be paid thr ough annuity

payments should grow as follows: four percent (4.0%) compounded annually from the date of

judgment and six percent (6.0%) compounded annually from the date of judgment. Petitioner

agrees.

2. Life

- contingent Annuity

Ana Ortega will continue to receive the annuity payments for future medical care from

the Life Insurance Company only so long as Ana Ortega is alive at the time that a particular

payment is due. Written notice to the Secretary of Health and Human Services and the Life

Insurance Comp any shall be made within twenty (20) days of Ana Ortega’s death.

III. SUMMARY OF RECOMMENDED PAYMENTS FOLLOWING JUDGMENT

A. Lump Sum paid to Ana Ortega: $317,146.70.

B

. An amount sufficient to purchase the annuity contract described above in section

II. B

.

Respectfully submitted,

STUART F. DELERY

Assistant Attorney General

RUPA BHATTACHARYYA

Director

Torts Branch, Civil Division

VINCENT J. MATANOSKI

Deputy Director

Torts Branch, Civil Division

LYNN E. R ICCIARDELLA

Senior Trial Attorney

Torts Branch, Civil Division

5 Case 1:12-vv-00703-UNJ Document 61 Filed 08/05/14 Page 5 of 6s/Tara J. Kilfoyle

TARA J. KILFOYLE

Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

Ben Franklin Station, P.O. Box 146

Washington, D.C. 20044

- 0146

Tel.: (202) 51 4

- 9729

DATE: August 5 , 2014

6 Case 1:12-vv-00703-UNJ Document 61 Filed 08/05/14 Page 6 of 6