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UNPUBLISHED DECISION AWARDING DAMAGES1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 

ITEMS OF COMPENSATION G.R. * M

Lump Sum 

Compensation 

Year 1

Compensation 

Year 2

Compensation 

Year 3

Compensation 

Year 4

Compensation 

Year 5

Compensation 

Year 6

Co

Y

2018 2019 2020 2021 2022 2023 2

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 

 

Medicare Part B Deductible 5%Medicare Advantage 5% M 360.00 360.00 

 

Medicare Supp 5% MRx 5% 100.00 100.00 

 

PCP 5% * 80.00 80.00 

 

Mileage: PCP 4% 18.72 18.72 18.72 18.72 18.72

Vision Therapy 5% 3,360.00Mileage: Vision Therapy 4% 86.40Vison Therapy Eval 5% 420.00Neuropsych Testing 4% 2,850.00Mileage: Neuropsych Testing 4% 14.40Counseling 4% * 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 

 

OT Eval 4% 190.00 190.00OT 4% * 2,160.00 2,160.00

Mileage: OT 4% 158.76 158.76ST 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 

 

Voc Rehab & Supp Employ 4% 

2,022.90 

Attendant Care/Residential Care 4% M 59,860.00 59,860.00 54,325.00 54,325.00 54,325.00 92,564.00 

 

Lost Earnings 1,032,153.27Pain and Suffering 250,000.00Past Unreimbursable Expenses 200,000.00Annual Totals 1,567,111.31 67,296.20 73,365.61 59,814.40 60,984.12 101,202.38 

 

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 jAs soon as practicable after entry of judgment, respondent shall make the following payment to the court aof the estate of Eilise Moriarty for the benefit of Eilise Moriarty, for Yr 1 life care expenses ($84,958.04), l

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 

expenses: $200,000.00.Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the dAnnual amounts shall increase at the rates indicated above in column G.R., compounded annually from the 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 

ITEMS OF COMPENSATION G.R. * M

Care First MOP 5%Medicare Part B Premium 5% MMedicare Part B Deductible 5%Medicare Advantage 5% MMedicare Supp 5% MRx 5%PCP 5% *Mileage: PCP 4%Vision Therapy 5%Mileage: Vision Therapy 4%Vison Therapy Eval 5%Neuropsych Testing 4%Mileage: Neuropsych Testing 4%Counseling 4% *Mileage: Counseling 4%Care Mngt 4% MOT Eval 4%OT 4% *Mileage: OT 4%ST 4% *Mileage: ST 4%Voc Rehab & Supp Employ 4% MVoc Rehab & Supp Employ 4%Attendant Care/Residential Care 4% MLost EarningsPain and SufferingPast Unreimbursable ExpensesAnnual Totals

Compensation 

Years 12-41

Compensation 

Years 42-43

Compensation 

Years 44-Life

2029-2058 2059-2060 2061-Life

 1,608.00 1,608.00

183.00

 360.00 360.00

1,080.00

 100.00 100.00 200.00 80.00 80.00

108.00

 1,500.00 1,500.00 1,500.00

 2,427.48 2,427.48 2,427.48 674.20 674.20 674.20

 92,564.00 92,564.00 92,564.00

 99,313.68 99,421.68 98,628.68

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 jAs soon as practicable after entry of judgment, respondent shall make the following payment to the court aof the estate of Eilise Moriarty for the benefit of Eilise Moriarty, for Yr 1 life care expenses ($84,958.04), l

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 

expenses: $200,000.00.Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the dAnnual amounts shall increase at the rates indicated above in column G.R., compounded annually from the 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.
-1-

 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

__________________________________________

)

MARIE LOUISE and STEPHEN H. MORIARTY )

as Conservators of EILISE MORIARTY, )

)

Petitioners, )

)

v. ) No. 03-2876V

) Special Master Moran

SECRETARY OF HEALTH ) ECF

AND HUMAN SERVICES, )

)

Respondent. )

__________________________________________)

RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

A. Life Care Items

Respondent engaged life care planner, Laura E. Fox, MSN, RN, CDDN, CNLCP, and 

petitioners engaged Nancy J. Bond, M.Ed., CCM, CLCP, to provide an estimation of Eilise 

Moriarty’s future vaccine-injury related needs. For the purposes of this proffer, the term 

“vaccine related” is as described in Judge Wheeler’s Review of Special Master’s remand 

Decision Denying Relief, filed under seal February 10, 2017, and reissued February 27, 2017. 

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 Eilise Moriarty, attached 

hereto as Tab A.1

 Respondent proffers that Eilise Moriarty should be awarded all items of 

 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-

compensation set forth in the life care plan and illustrated by the chart attached at Tab A. 

Petitioners agree.

B. Lost Earnings

The parties agree that based upon the evidence of record, Eilise Moriarty has suffered a 

loss of earnings in the past and will not be gainfully employed in the future. Therefore, 

respondent proffers that Eilise Moriarty should be awarded lost earnings as provided under the 

Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B). Respondent proffers that the appropriate award for 

Eilise Moriarty's lost earnings is $1,032,153.27. Petitioners agree.

C. Pain and Suffering

Respondent proffers that Eilise Moriarty should be awarded $250,000.00 in actual pain 

and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioners agree.

D. Past Unreimbursable Expenses

Evidence supplied by petitioners documents their expenditure of past unreimbursable 

expenses related to Eilise Moriarty's vaccine-related injury. Respondent proffers that petitioners

should be awarded past unreimbursable expenses in the amount of $200,000.00. Petitioners 

agree.

II. Form of the Award

The parties recommend that the compensation provided to Eilise Moriarty should be 

made through a combination of lump sum payments and future annuity payments as described 
-3-

below, and request that the Special Master's decision and the Court's judgment award the 

following:2

A. 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.

B. A lump sum payment of $200,000.00, representing compensation for past 

unreimbursable expenses, in the form of a check payable to petitioners.

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, 

 2 Should Eilise Moriarty 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, lost future earnings, and future pain and suffering.

3

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

or more life insurance companies.
-4-

as illustrated by the chart at Tab A attached hereto, paid to the life insurance company4 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 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 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.

1. Growth Rate

Respondent proffers that a four percent (4%) growth rate should be applied to all nonmedical life care items, and a five percent (5%) growth rate should be applied to all medical life 

 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

 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.
-5-

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 Eilise Moriarty 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 Eilise Moriarty’s death.

3. Guardianship/Conservatorship

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.

III. Summary of Recommended Payments Following Judgment

A. Lump sum paid to petitioners as court-appointed guardian(s)/

conservator(s) of Eilise Moriarty’s estate: $1,367,111.31

 

B. Paid to petitioners: $ 200,000.00 

C. An amount sufficient to purchase the annuity contract described

above in section II. C.
-6-

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

HEATHER L. PEARLMAN

Assistant Director 

Torts Branch, Civil Division

/S/Alexis B. Babcock 

ALEXIS B. BABCOCK

Assistant Director

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, D.C. 20044-0146

Telephone: (202) 616-7678

Dated: August 6, 2018