# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS



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

JANET FLORENCE, * No. 15

- 255V

* Special Master Christian J. Moran

Petitioner *

*

v. * Filed: April 21 , 2016

*

SECRETARY OF HEALTH * Damages; decision based on proffer;

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

* lymphedema

. Respondent. *

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

Lawrence R. Cohan

, Anapol Weiss

, Philadelphia, PA , for Petitioner;

Heather L. Pearlman , U.S. Department of Justice, Washington, DC, for

Respondent.

UNPUBLISHED DECISION AWARDING DAMAGES 1



### On March 12, 2015

, Janet Florence filed a petition seeking compensation

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

- 1

et seq., alleging that the influenza vaccination caused her to suffer lymphedema.

On May 28 , 201 5 , the undersigned ruled, based upon respondent’s concession, see Respondent’s Report, filed May 19, 2015 , that petitioners are entitled t o

compensation under the Vaccine Act.

On April 21, 2016 , respondent filed a Proffer on Award of Compensation, to

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

finds the prof

fer reasonable and that petitioner is entitled to an award as stated in

the Proffer. Pursuant to the attached Proffer the court awards petitioner:

1 T he E

- Government Act , 44 § 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.

### 1. A lump sum payment of $ 258,381.93

, in the form of a check pa yable to

petitioner, Janet Florence . This amount represents compensation for all

damages that would be available under 42 U.S.C. §300aa

- 15(a), except

as set forth below in paragraph 2 ; and

2. An amount sufficient to purchase an annuity contract as described in

section II. B. of the Proffer

.

In the absence of a motion for review filed pursuant to RCFC, Appendix B,

the clerk is directed to enter judgment in case 15

- 255 V according to this decision

and the attached proffer. 2



### Any questions may be directed to my law clerk, Dan Hoffman , at (202) 357

-

63 60

.

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

2 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each

party filing a notice renouncing the right to seek review by a United States Court of Federal

Claims judge.- 1

- IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

_______________________________________ JANET FLORENCE

, )

)

Petitioner

, )

)

v. ) No. 1 5

- 255 V

) Special Master Moran

SECRETARY OF HEALTH AND HUMAN ) ECF

SERVICES, )

)

Respondent. )

)

RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

A. Life Care Items

Respondent engaged life care planner M. Virginia Walton

, RN, MS N

, FNP, CNLCP, and

petitioner engaged Roberta Hurley

, Hurley Consulting, to provide an estimation of Janet

Florence ’s future vaccine

- injury r elated needs. For the purposes of this proffer, the term

“vaccine related” is as described in the respondent’s Rul e 4(c) Report

, filed on May 19, 2015

.

All items of compensation identified in the life care plan are supported by the evidence, and are

illu strated by the chart entitled Appendix A: Items of Compensation for Janet Florence , attached

hereto as Tab A. 1 Respondent proffers that Janet Florence 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.

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

- B. Lost Earnings

The parties agree that based upon the evidence of record, Janet Florence has not suffered

a past loss of earnings and will not suffer a loss of earnings in the future

. Therefore, respondent

pro ffers that Janet Florence 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 Janet Florence should be awarded $ 2 0 0, 00 0

. 00 in actual an d

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

P etitioner represents that she has not incurred past unreimbursable expenses related to h er

vaccine

- related injury.

E. Medicaid Lien

Petitioner represents that there are no Medicaid liens outstanding against her for her

vaccine

- related injury

.

II. For m 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 payments as describ ed below,

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

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

appropriate relief. In partic ular, respondent would oppose any award for future medical expenses, future lost

earnings, and future pain and suffering

.- 3

- A. A lump sum payment of $ 258,381.93 , representing compensation for life care

expenses expected to be incurred during the first year after judgment ($ 58,381.93 ) and pain and

suffering ($ 2 00,000.00 ), in the form of a check paya ble to petitioner, Janet Florence

.

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 Year Two (beginning on the first

anniversary of the date of judgment) and all subsequent years shall be provided through

respondent’ s purch ase of an annuity, which annuity shall make payments directly to petitioner,

Janet Florence , only so long as she 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 m onthly,

quarterly, annu al 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.

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

insurance companies.

4 T he 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 Com pany, Insurance Company Claims Paying Ability Rating: AA

- , AA,

AA+, or AAA.- 4

- 1. Growth Rate

Res pondent 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

Company only so long as s he

, Janet Florence , is alive at the time that a particular payment is due.

Written notice shall be provided to the Secret ary of Health and Human Services and the Life

Insurance Company within twenty (20) days of Janet Florence ’s death.

3. Guardianship

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

III. Summary of Recommended Pa yments Following Judgment

A. Lump Sum paid to petitioner, Janet Florence : $ 258,381.93

B

. An amount sufficient to purchase the annuity contract described

above in section II. B

.

Respectfully submitted,

BENJAMIN C. MIZER

Princ ipal Deputy Assistant Attorney General

RUPA BHATTACHARYYA

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.- 5

- VINCENT J. MATANOSKI

Deputy Director

Torts Branch, Civil Division

ALTHEA W. DAVIS

Senior Tr ial Counsel

Torts Branch, Civil Division

s / H eather L. Pearlman

HEATHER L. PEARLMAN

Senior Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin F ranklin Station

Washington, D.C. 20044

- 0146

Telephone: (202) 353

- 2699

Dated: A pril 21, 201 6Appendix A: Items of Compensation forJanet FlorencePage 1 of 2ITEMS OFCOMPENSATION G.R. * MLump SumCompensationYear 1CompensationYear 2CompensationYear 3CompensationYear 4CompensationYear 5CompensationYear 6CompensationYear 7CompensationYear 8CompensationYear 92016 2017 2018 2019 2020 2021 2022 2023 2024Medicare Part B Ded.5% 166.00166.00166.00166.00166.00166.00166.00166.00166.00Medigap G Premium5% M 1,641.001,705.081,771.801,841.161,909.201,986.002,064.722,144.042,223.96Antibiotic5% M 120.00120.00120.00120.00120.00120.00120.00120.00120.00Internist5% *Oncol./ Hematologist5% *Dermatology5% *PT4% M 16,318.005,351.205,351.205,351.205,351.205,351.205,351.205,351.205,351.20Pulley System4% 50.3910.0810.0810.0810.0810.0810.0810.0810.08Lymphedema Pump4% 2,500.002,500.002,500.00Grab Bars4% 37.903.793.793.793.793.793.793.793.79Arm Bike4% 79.988.008.008.008.008.008.008.008.00Gloves4% 27.7227.7227.7227.7227.7227.7227.7227.7227.72Waterproof Sleeves4% 119.94119.94119.94119.94119.94119.94119.94119.94119.94Sleeves4% 600.00600.00600.00600.00600.00600.00600.00600.00600.00Gauntlet4% 150.00150.00150.00150.00150.00150.00150.00150.00150.00Garmets4% 373.00124.33124.33124.33124.33124.33124.33124.33124.33Home Care4% M 32,648.0032,648.0032,648.0032,648.0032,648.0032,648.0032,648.0032,648.0032,648.00Nat'l Lymph. Network4% 50.0050.0050.0050.0050.0050.0050.0050.0050.00Home Mods0% 3,500.00Pain and Suffering200,000.00Annual Totals258,381.9341,084.1441,150.8643,720.2241,288.2641,365.0643,943.7841,523.1041,603.02Note: 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 careexpenses ($58,381.93) and pain and suffering ($200,000.00): $258,381.93.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 forJanet FlorencePage 2 of 2ITEMS OFCOMPENSATION G.R. * MMedicare Part B Ded.5%Medigap G Premium5% MAntibiotic5% MInternist5% *Oncol./ Hematologist5% *Dermatology5% *PT4% MPulley System4%Lymphedema Pump4%Grab Bars4%Arm Bike4%Gloves4%Waterproof Sleeves4%Sleeves4%Gauntlet4%Garmets4%Home Care4% MNat'l Lymph. Network4%Home Mods0%Pain and SufferingAnnual TotalsCompensationYear 10CompensationYear 11CompensationYear 12CompensationYear 13CompensationYear 14CompensationYear 15CompensationYear 16CompensationYears 17-Life2025 2026 2027 2028 2029 2030 2031 2032-Life166.00166.00166.00166.00166.00166.00166.00166.002,300.282,397.122,480.762,566.682,658.722,750.762,865.122,980.80120.00120.00120.00120.00120.00120.00120.00120.005,351.205,351.205,351.205,351.205,351.205,351.205,351.205,351.2010.0810.0810.0810.0810.0810.0810.0810.082,500.00833.33833.33833.33833.33833.33833.33833.333.793.793.793.793.793.793.793.798.008.008.008.008.008.008.008.0027.7227.7227.7227.7227.7227.7227.7227.72119.94119.94119.94119.94119.94119.94119.94119.94600.00600.00600.00600.00600.00600.00600.00600.00150.00150.00150.00150.00150.00150.00150.00150.00124.33124.33124.33124.33124.33124.33124.33124.3332,648.0032,648.0032,648.0032,648.0032,648.0032,648.0032,648.0032,648.0050.0050.0050.0050.0050.0050.0050.0050.0044,179.3442,609.5142,693.1542,779.0742,871.1142,963.1543,077.5143,193.19Note: 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 careexpenses ($58,381.93) and pain and suffering ($200,000.00): $258,381.93.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.