# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 1533 V

UNPUBLISHED

CONNIE RAINB OLT

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: August 31, 2020

Special Processing Unit (SPU);

Damages Decision Based on Proffer;

Influenza (Flu) Vaccine; Guillain

Barre Syndrome (GBS)

Richard Ga ge, Richard G age, P.C., Cheyenne, WY , for petitioner.

Linda Sara Renzi , U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On October 16, 2017

, Connie Rainbolt 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 Guillain

- Barre Syndrome ( “ GBS ” ) as

a result of an influenza ( “ flu ” ) vaccination administered on Nove mber 26, 20 1 4

. Petition

at 1

. Petitioner further alleges that she suffered the residual effects of her injury for more

than six m onths, that the vaccine was administered within the United States, and that she

has not collected an award or settlement from a civil action related to her injury . Petition

at 1

. The case was assigned to the Special Processing Unit of the Office of Special

Masters.

On July 27, 2020

, a ruling on entitlement was issued , finding P etitioner entitled to

compensation for G BS . On August 28, 2020

, R espondent filed a p roffer on a ward of

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am

required to post it on the United States Court of Federal Claims' website in accordance with the E

Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic

Government Services). This means the decision will be available to anyone with access to the

internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact

medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.

If, upon review, I agree that the identified material fits within this definition, I will redact such material from

public access.

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).2 compensation (“Proffer”) indicating P etitioner should be awarded $ 194,248.82

(compris ed of $72,900.66 for expected expenses incurred during the first year after

judgment, $120,000 for pa in and suffer ing; and $1,348.1 6 for past unrimebursable

expenses )

. Proffer at 2

- 3

. The Proffer also indicates that Petitioner should be awarded an

amount sufficient to purchase an annuity contract as set forth in Section II.B. Proffer at

3

- 4. In the Proffer, R espondent represented that P etitioner agrees with the proffered

award. Id. at 4. Based on the record as a whole, I find that P etitioner is entitled to an

award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, I award P etitioner :

• A lump sum of $ 194,248.82 (compris ed of $72,900.66 for expected

expenses incurred during the first year after judgment, $120,000 for

pa in and suffer ing; and $1,348.1 6 for past unr e im bur sable expe nses)

in the form of a check payable to petitioner

, Connie Rainbolt ; and

• An amount sufficient to purchase the annuity contract described in

the Proffer at Section II.B.

This amount represents compensation for all damages that would be available under §

300aa

- 15(a).

The clerk of the court is directed to enter judgment in accordance with this

decision. 3

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint fil ing of notice

renouncing the right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

CONNIE RAINBOLT

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. No. 1 7

- 1533 V

Chief Special Master Corcoran

ECF

RESPONDENT ’ S PROFFER ON AWARD OF COMPENSATION

On October 16, 2017

, Connie Rainbolt (“petitioner”) filed a petition for compensation

under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 1 to

- 34

(“Vaccine Act” or “Act”), alleging that s he suffered Guillain

- Barré Syndrome (“GBS”) as a

result of an influenza (“flu”) vaccin e s he received on November 26, 2014 . Petition at 1. On July

23, 2020 , the Secretary of Health and Human Services (“respondent”) filed his Rule 4(c) Repor t

conceding that petitioner suffered the Table injury of GBS following a flu vaccine within the

Table time period

, and is entitled to compensation. O n July 27, 2020 , the C ourt issued a Ruling

on Entitlement finding petitioner entitled to compensation. EC F 65; ECF 66.

I. Items of Compensation

A. Life Care Items

Respondent engaged life care planner L inda Curtis , RN MS, C N LCP

, CCM, and

petitioner engaged Liz Kattman, M. S.

, to provide an estimation of petitioner ’s future vaccine

injury related needs. F or the purposes of this proffer, the term “vaccine related” is as described

in the respondent’s Rule 4(c) Report. All items of compensation identified in the life care plan Case 1:17-vv-01533-UNJ Document 71 Filed 08/28/20 Page 1 of 52 are supported by the evidence, and are illustrated by the chart entitled Appendix A: Items of

Compensation for Connie Rainbolt , attached hereto as Tab A. 1 Respondent proffers that

petitioner should be awarded all items of compensation set forth in the life care plan and

illustrated by the chart attached at Tab A. Petitioner agrees.

B

. Pain and Suffering

Respondent proffers that petitioner should be awarded $ 120 ,000.00 in actual and

projected pain and suffering. This amount reflects that any award for projected pain and

suffering has been reduced to net present value. See 42 U.S .C. § 300aa

- 15(a)(4). Petitioner

agrees.

C. Past Unreimbursable Expenses

Evidence supplied by petitioner documents h er expenditure of past unreimbursable

expenses related to h er vaccine

- related injury. Respondent proffers that petitioner should be

aw arded past unreimbursable expenses in the amount of $ 1,348.16 . Petitioner agrees.

II. Form of the Award

The parties recommend that the compensation provided to petitioner should be made

through a combination of lump sum payments and future annuity pay ments as describ ed below,

and request that the Special M aster’s decision and the Court’ s judgment award the following: 2

A. A lump sum payment of $ 194,248.82

, representing compensation for life care

expenses expected to be incurred during the first year a fter judgment ( $ 72,900.66 )

, pain and

1 The chart at Tab A illustrates the annual b enefits 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 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

. Case 1:17-vv-01533-UNJ Document 71 Filed 08/28/20 Page 2 of 53 suffering ( $ 120 ,000.00 )

, and past unreimbursable expenses ($ 1,348.16 ), in the form of a check

payable to petitioner, Connie Rainbolt

.

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, paid to the life insurance company 4 from

which the annuity will be purchased. 5 Compensation for Ye ar 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 petitioner,

Connie Rainbolt , only so long as petitione r is alive at the time a particular pa yment is due. At

the Secretary’ s sole discretion, the periodic payments may be provided to petitioner in monthly,

quarterly, annu al or other installments. The “annual amounts” set forth in the chart at Tab A

3 In respondent’s discretion, r espondent 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 Insuran ce 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 authorizes the disclosure of certain documents filed by the pe titioner 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. Case 1:17-vv-01533-UNJ Document 71 Filed 08/28/20 Page 3 of 54 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 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. Petitioner agrees.

2. Life

- contingent annuity

Petitioner will continue to receive the annuity payments from the Life Insurance

Comp any only so long as s he

, Connie Rainbolt , 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 Connie Rainbolt ’s dea th.

3. Guardianship

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

III. Summary of Recommended Payments Following Judgment

A. Lump Sum paid to petitioner, Connie Rainbolt : $ 1 94,248.82

B

. An amount suffi cient to purchase the annuity contract d escribed

above in section II. B

. Case 1:17-vv-01533-UNJ Document 71 Filed 08/28/20 Page 4 of 55 Respectfully submitted,

ETHAN P. DAVIS

Acting Assistant Attorney General

C. SALVATORE D’ALESSIO

Acting Director

Torts Branch, Civi l Division

CATHARINE E. REEVES

Deputy Director

Torts Branch, Civil Division

ALEXIS B . BABCOCK

Assistant Director

Torts Branch, Civil Division

s/ Linda S. Renzi

LIN DA S. RENZI

Senior Tr ial Counsel

Torts Branch, Civil Division

U. S. Department of Justice

P.O. Box l46, Benjamin Franklin Station

Washington, D.C. 20044

- 0146

Tel: (202) 616

- 4133

Dated: August 28 , 2020 Case 1:17-vv-01533-UNJ Document 71 Filed 08/28/20 Page 5 of 5Appendix A: Items of Compensation for Connie Rainbolt Page 1 of 1

ITEMS OF COMPENSATION G.R. * M Lump Sum

Compensation

Year 1 Compensation

Year 2 Compensation

Year 3 Compensation

Years 4-Life

2020 2021 2022 2023-Life

Medigap F 5% M 2,471.52 2,471.52 2,471.52 2,471.52

Medicare Part D 5% M 838.68 838.68 838.68 838.68

Neurologist 5% *

Gabapentin 5% *

Cymbalta 5% *

Ambien 5% *

Depends 4% 225.00 225.00 225.00 225.00

Incontinence Pads 4% 196.00 196.00 196.00 196.00

Daily Assistance 4% M 64,240.00 64,240.00 64,240.00 64,240.00

PT Eval 4% *

PT 4% *

Case Mngt 4% M 2,880.00 2,880.00 2,880.00 2,880.00

Medical Mileage 4% 57.46 57.46 57.46 57.46

Walker 4% 208.00 41.60 41.60 41.60

Folding WC 4% *

Cane 4% 26.00 5.20 5.20 5.20

Cane Tips 4% 5.00 5.00 5.00 5.00

Pill Box 4% 13.00 2.60 2.60 2.60

Bath Bench 4% 65.00 13.00 13.00 13.00

Raised Toilet Seat 4% 70.00 14.00 14.00 14.00

Portable WC Ramp 4% 38.00 3.80 3.80 3.80

Shower Sprayer 4% 36.00 3.60 3.60 3.60

Grab Bars 4% 175.00 17.50 17.50 17.50

Lifeline 4% 600.00 600.00 600.00 600.00

Ancillary Services 4% 756.00 756.00 756.00

Pain and Suffering 120,000.00

Past Unreimbursable Expenses 1,348.16

Annual Totals 194,248.82 72,370.96 72,370.96 71,614.96

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 judgment.

As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for Yr 1 life care

expenses ($72,900.66), pain and suffering ($120,000.00), and past unreimbursable expenses ($1,348.16): $194,248.82.

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.

Case 1:17-vv-01533-UNJ Document 71-1 Filed 08/28/20 Page 1 of 1