# 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UNPUBLISHED DECISION AWARDING DAMAGES 1



### 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 MasterAppendix A: Items of Compensation for Eilise MoriartyPage 1 of 2ITEMS OF COMPENSATION G.R. * MLump SumCompensationYear 1CompensationYear 2CompensationYear 3CompensationYear 4CompensationYear 5CompensationYear 6CompensationYears 7-10CompensationYear 112018 2019 2020 2021 2022 2023 2024-2027 2028Care First MOP 5% 1,500.001,500.001,500.001,500.00Medicare Part B Premium 5% M 1,608.001,608.001,608.001,608.00Medicare Part B Deductible 5%Medicare Advantage 5% M 360.00360.00360.00360.00Medicare Supp 5% MRx 5%100.00100.00100.00100.00PCP 5% *80.0080.0080.0080.00Mileage: PCP 4% 18.7218.7218.7218.7218.72Vision 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% *540.00540.00540.00Mileage: Counseling 4% 43.2043.2043.2043.2024.92Care Mngt 4% M 3,000.001,500.001,500.001,500.001,500.001,500.001,500.001,500.00OT Eval 4% 190.00190.00OT 4% * 2,160.002,160.00Mileage: OT 4% 158.76158.76ST 4% * 10,830.001,710.00Mileage: ST 4% 466.56155.52Voc Rehab & Supp Employ 4% M 15,978.692,427.482,427.482,427.482,427.482,427.48Voc Rehab & Supp Employ 4%2,022.90674.20674.20Attendant Care/Residential Care 4% M 59,860.0059,860.0054,325.0054,325.0054,325.0092,564.0092,564.0092,564.00Lost Earnings 1,032,153.27Pain and Suffering 250,000.00Past Unreimbursable Expenses 200,000.00Annual Totals 1,567,111.3167,296.2073,365.6159,814.4060,984.12101,202.3899,313.6899,853.68Note: 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 judgment.As soon as practicable after entry of judgment, respondent shall make the following payment to the court appointed guardian(s)of the estate of Eilise Moriarty for the benefit of Eilise Moriarty, for Yr 1 life care expenses ($84,958.04), lost earnings ($1,032,153.27),and pain and suffering ($250,000.00): $1,367,111.31.As soon as practicable after entry of judgment, respondent shall make the followingpayment to petitionersfor past unreimbursableexpenses: $200,000.00.Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the date of judgment.Annual amounts shall increase at the rates indicated above in column G.R., compounded annually from the date of judgment.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 MoriartyPage 2 of 2ITEMS OF COMPENSATION G.R. * MCare 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 TotalsCompensationYears 12-41CompensationYears 42-43CompensationYears 44-Life2029-2058 2059-2060 2061-Life1,608.001,608.00183.00360.00360.001,080.00100.00100.00200.0080.0080.00108.001,500.001,500.001,500.002,427.482,427.482,427.48674.20674.20674.2092,564.0092,564.0092,564.0099,421.6899,313.6898,628.68Note: 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 judgment.As soon as practicable after entry of judgment, respondent shall make the following payment to the court appointed guardian(s)of the estate of Eilise Moriarty for the benefit of Eilise Moriarty, for Yr 1 life care expenses ($84,958.04), lost earnings ($1,032,153.27),and pain and suffering ($250,000.00): $1,367,111.31.As soon as practicable after entry of judgment, respondent shall make the followingpayment to petitionersfor past unreimbursableexpenses: $200,000.00.Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the date of judgment.Annual amounts shall increase at the rates indicated above in column G.R., compounded annually from the date of judgment.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

, )

)

Petitioner s

, )

)

v. ) No. 03

- 2876V

) Special Master Moran

SECRETARY OF HEALTH ) ECF

AND HUMAN SERVICES, )

)

Respondent. )

__________________________________________)

RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I. Item s of Compensation

A. Life Care Items

R espondent engaged life care planner

, Laura E. Fox, MSN, RN, CDDN, CNLCP , and

petitioner s 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 identi fied 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 firs t anniversary of the date of judgment,

and every year thereafter up to the anniversary of the date of judgment.- 2

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

Petitioner s 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 wi ll not be gainfully employed in the future . Therefore,

respondent proffers that Eilise Moriarty s hould 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 Mo riarty 's lost earnings is $ 1,032,153.27

. Petitioner s agree.

C. Pain and Suffering

Respondent proffers that Eilise Moriarty should be awarded $ 250,000. 0 0 in actual p ain

and suffering. See 42 U.S.C. § 300aa

- 15(a) ( 4). Petitioner s agree.

D. Past Unrei mbursable Expenses

Evidence supplied by petitioner s document s t he i r expenditure of past unreimbursable

expenses related to Eilise Moriarty 's vaccine

- related injury. Respondent proffers that petitioner s

should be awarded past unreimbursable expenses in th e amount of $ 200,000.00

. Petitioner s

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 re quest that the S pecial M aster'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 ), i n t he form of a check payable to petitioner s as court

- appointed guardian(s)/

conservator(s) of Eilise Moriarty , for the benefit of Eilise Moriarty

. No payments shall be made

until petitioner s provide respondent with documentation estab lishing that they ha ve been

appointed as the guardian(s)/conservator(s) of Eilise Moriarty 's estate . If petitioner s are not

authorized by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the

estate of Eilise Moriarty , any such p ayment 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 s um payment of $ 200,000.00 , representing compensation for past

unreimbursable expenses, in the form of a check payable to petitioner s

.

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

described bel ow, 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 company 4 from

which the annuity will be purchased. 5 Compensation for Year Two (beginni ng 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 petitioner s

as guardian(s)/ conservator ( s ) of the estate of Eilise Mor iarty , 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 petitioner s in monthly, quarterly, annual or other installments. The

"annual amounts" se t forth in the chart at Tab A describe only the total yearly sum to be paid to

petitioner s 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 t o all non

medical life care items, and a five percent ( 5 %) growth rate should be applied to all medical life

4 Th e 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 Co mpany, Insurance Company Claims Paying Ability

Rating: AA

- , AA, AA+, or AAA.

5 Petitioner s authorize the disclosure of certain documents filed by the petitioner s in this case

consistent with the Privacy Act and the routine uses described in the Nationa l 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. Petitioner s agree.

2. Life

- C ontingent A nnuity

Petitioner s will continue to receive the a nnuity 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 twe nty (20) days of Eilise Moriarty ’s death.

3. Guardianship/ Conservatorship

No payments shall be made until petitioner s provide respondent with documentation

establishing that they ha ve been appointed as the guardian(s)/conservator(s) of Eilise Moriarty ’ s

estate. If petitioner s 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 s um paid to petitioner s as court

- appointed guardian(s)/

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

B. Paid to petitioner s : $ 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