In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS 

No. 16-766V 

 Filed: November 3, 2017 

UNPUBLISHED 

MAX BAUM, 

 Petitioner, 

v. 

SECRETARY OF HEALTH AND 

HUMAN SERVICES, 

 Respondent. 

Special Processing Unit (SPU); 

Damages Decision Based on Proffer; 

Influenza (Flu) Vaccine; GuillainBarre Syndrome (GBS) 

 

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner. 

Ilene Claire Albala, U.S. Department of Justice, Washington, DC, for respondent. 

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master: 

 On June 29, 2016, petitioner 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 he suffered Guillain-Barre Syndrome (“GBS”) as a result of 

his November 12, 2015 influenza (“flu”) vaccination. Petition at 1. The case was 

assigned to the Special Processing Unit of the Office of Special Masters. 

On October 27, 2017, a ruling on entitlement was issued, finding petitioner 

entitled to compensation for GBS. On November 2, 2017, respondent filed a proffer on 

award of compensation (“Proffer”) indicating petitioner should be awarded 

compensation on the terms set forth therein. Proffer at 1-5. In the Proffer, respondent 

represented that petitioner agrees with the proffered award. 

 

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the 

undersigned intends 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). 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, the undersigned agrees that the identified material fits 

within this definition, the undersigned 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

 Based on the record as a whole, the undersigned finds that petitioner is entitled 

to an award as stated in the Proffer. 

Pursuant to the terms stated in the attached Proffer, the undersigned awards

the following compensation: 

 A. A lump sum payment of $399,599.88, representing 

compensation for life care expenses expected to be incurred during the 

first year after judgment ($135,549.84), pain and suffering ($237,359.96), 

and past unreimbursable expenses ($26,690.08), in the form of a check 

payable to petitioner, Max Baum. 

 B. A lump sum payment of $46,640.43, representing 

compensation for satisfaction of the State of Illinois Medicaid lien, payable 

jointly to petitioner and 

Illinois Department of Healthcare and Family Services 

Bureau of Collections 

Technical Recovery Section 

401 S. Clinton, 5th Floor 

Chicago, IL 60607-3800 

Case No.: 91-200-0000FH1483 

Attn: Anthony Graham 

 C. 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 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 petitioner, Max Baum, only so long as 

 

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

life insurance companies.” Proffer at Note 3. 

 

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.” Proffer at Note 4. 

 5 “Petitioner authorizes 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.” Proffer at Note 5. 
3

Max Baum is alive at the time a particular payment is due. At the 

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

petitioner 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 petitioner and do not require that the payment be made in 

one annual installment. 

 1. Growth Rate 

 Respondent proffers that a three percent (3%) 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: three percent (3%) 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 Company only so long as he, Max Baum, 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 Max Baum’s death. 

 3. Guardianship 

 Petitioner is a competent adult. Evidence of guardianship is not 

required in this case. 

Proffer at 3-5. 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.6 

IT IS SO ORDERED.

 s/Nora Beth Dorsey 

 Nora Beth Dorsey 

 Chief Special Master 

 

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

renouncing the right to seek review.
-1-

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

MAX BAUM, 

 

 Petitioner, 

v. 

 

SECRETARY OF HEALTH AND 

HUMAN SERVICES, 

 

 Respondent. 

 No. 16-766V 

 Chief Special Master Dorsey 

 ECF

 

PROFFER ON AWARD OF COMPENSATION

On June 29, 2016, Max Baum (“petitioner”) filed a petition for compensation (“Petition”) 

under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 

(“Vaccine Act” or “Act”), as amended. Petitioner alleges that he suffered Guillain-Barré 

syndrome (“GBS”) as a result of an influenza (“flu”) vaccine administered on November 12, 

2015. Petition at 1. On October 27, 2017, Chief Special Master Dorsey issued an order finding 

that petitioner is entitled to compensation. Ruling on Entitlement, D.I. 45. The following is 

respondent’s proffer on damages. 

I. Items of Compensation 

A. Life Care Items

 Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLP, and petitioner 

engaged Brook Feerick, RN, CCM, CNLCP, to provide an estimation of Max Baum’s future 

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

described in the respondent’s Rule 4(c) Report, which was filed on October 26, 2017. All items 

of compensation identified in the life care plan are supported by the evidence, and are illustrated 
-2-

by the chart entitled Appendix A: Items of Compensation for Max Baum, attached hereto as Tab 

A.1

 Respondent proffers that Max Baum 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. Lost Earnings 

 The parties agree that based upon the evidence of record, Max Baum has not suffered a 

past loss of earnings and will not suffer a loss of earnings in the future. Therefore, respondent 

proffers that Max Baum should not be awarded lost earnings as provided under the Vaccine Act, 

42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.

 C. Pain and Suffering 

 Respondent proffers that Max Baum should be awarded $237,359.96 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. 

D. Past Unreimbursable Expenses

 Evidence supplied by petitioner documents Max Baum’s expenditure of past 

unreimbursable expenses related to his vaccine-related injury. Respondent proffers that 

petitioner should be awarded past unreimbursable expenses in the amount of $26,690.08. 

E. Medicaid Lien

 Respondent proffers that Max Baum should be awarded funds to satisfy a State of Illinois

lien in the amount of $46,640.43, which represents full satisfaction of any right of subrogation, 

assignment, claim, lien, or cause of action that the State of Illinois may have against any 

individual as a result of any Medicaid payments the State of Illinois has made to or on behalf 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. 
-3-

Max Baum from the date of his eligibility for benefits through the date of judgment in this case 

as a result of his vaccine-related injury suffered on or about November 12, 2015, under Title XIX 

of the Social Security Act. 

II. Form of the Award 

The parties recommend that the compensation provided to Max Baum 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 award the following:2

 A. A lump sum payment of $399,599.88, representing compensation for life care 

expenses expected to be incurred during the first year after judgment ($135,549.84), pain and 

suffering ($237,359.96), and past unreimbursable expenses ($26,690.08), in the form of a check 

payable to petitioner, Max Baum. 

 B. A lump sum payment of $46,640.43, representing compensation for satisfaction of the 

State of Illinois Medicaid lien, payable jointly to petitioner and 

Illinois Department of Healthcare and Family Services

Bureau of Collections

Technical Recovery Section

401 S. Clinton, 5th Floor 

Chicago, IL 60607-3800 

Case No.: 91-200-0000FH1483 

Attn: Anthony Graham 

 C. 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, 

 

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.

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 petitioner, 

Max Baum, only so long as Max Baum is alive at the time a particular payment is due. At the 

Secretary’s sole discretion, the periodic payments may be provided to petitioner 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 petitioner and do not require that the payment be 

made in one annual installment.

 1. Growth Rate

 Respondent proffers that a three percent (3%) 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 

care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid through annuity 

payments should grow as follows: three percent (3%) 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.

 

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-

 2. Life-contingent annuity 

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

Company only so long as he, Max Baum, 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 Max Baum’s death. 

 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, Max Baum: $399,599.88 

B. Medicaid lien: $ 46,640.43 

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 

 

 5

 Petitioner authorizes 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. 
-6-

/s/ Ilene Albala 

 ILENE ALBALA

Trial Attorney

 Torts Branch, Civil Division

 U.S. Department of Justice 

 P.O. Box 146 

 Ben Franklin Station 

 Washington, D.C. 20044-0146 

 Direct dial: (202) 616-3655 

Date: November 2, 2017 
Respondent’s Tab A
Appendix A: Items of Compensation for Max Baum Page 1 of 2

ITEMS OF COMPENSATION G.R. * M

Lump Sum 

Compensation 

Year 1

Compensation 

Year 2

Compensation 

Years 3-Life

2017 2018 2019-Life

PM&R 5% *

Internist 5% *

Neurologist 5% *

Podiatrist 3% 852.00 852.00 852.00 

Hospitalization 5% *

ER 5% *

Blood Work 5% *

Urinalysis 5% *

EMG 5% *

TB Test 5% *

Venous Doppler Study 5% *

Bisacodyl Supp 3% 6.60 6.60 6.60 

Vit B-12 3% 18.25 18.25 18.25 

Senna 3% 65.70 65.70 65.70 

Citalopram 5% *

Deplin 5% *

Furosemide 5% *

Ativan 5% *

Hydrocortisone Cream 5% *

Biofreeze 3% 269.52 269.52 269.52 

Capsaicin Cream 3% 504.00 504.00 504.00 

Coumadin 1mg & 2.5mg 5% *

Potassium Chloride 5% *

Finasteride 5% *

Alendronate Sodium 5% *

Ibuprofen 3% 5.76 5.76 5.76 

Acetaminophen (2) 3% 21.87 21.87 21.87 

PT Eval 3% *

PT 3% M 5,658.00 5,658.00 1,074.00 

OT Eval 3% *

OT 3% M 2,997.00 621.00 621.00

Recreational Therapy 3% M 3,437.00 3,437.00 3,437.00

Custom Shoes 3% 386.00 386.00 386.00

Hoyer Lift per Rehab Mart Price 3% 2,312.00

Slings for Lift per Rehab Mart 3% 92.00 92.00 92.00

Manual WC 3% *

Roho Cushion 3% 429.00 143.00 143.00

Cover for Cushion 3% 98.00 32.67 32.67

Walker 3% 111.00 22.20 22.20

Positioning Pillows 3% 187.50 62.50 62.50

Hand Weights 3% 57.00

E-stim 3% *

E-stim Supplies 3% *
Appendix A: Items of Compensation for Max Baum Page 2 of 2

ITEMS OF COMPENSATION G.R. * M

Lump Sum 

Compensation 

Year 1

Compensation 

Year 2

Compensation 

Years 3-Life

2017 2018 2019-Life

Compression Stockings 3% 76.64 76.64 76.64 

Skilled Nursing Facility 3% M 114,245.00 114,245.00 114,245.00 

Case Mngt 3% M 2,640.00 2,640.00 2,640.00 

Transportation 3% 1,080.00 1,080.00 1,080.00 

Pain and Suffering 237,359.96

Past Unreimbursable Expenses 26,690.08

Medicaid Lien 46,640.43

Annual Totals 130,239.71 446,240.31 125,655.71 

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 ($135,549.84), pain and suffering ($237,359.96), and past unreimbursable 

expenses ($26,690.08): $399,599.88.

As soon as practicable after entry of judgment, respondent shall make the following payment jointly to 

petitioner and the State of Illinois, as reimbursement of the state's Medicaid lien: $46,640.43.

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.