# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 11-679V (Filed: September 22, 2014)

* * * * * * * * * * * * * * * AUDREY MCELROY, * UNPUBLISHED * Special Master Dorsey Petitioner, *

*

v. * * Decision on Proffer; Damages;

SECRETARY OF HEALTH * In fluenza (Flu); Urticarial AND HUMAN SERVICES, * Vasculitis.

* Respondent. *

*

* * * * * * * * * * * * * * * Donald Philip Edwards, Law Office of Donald P. Edwards, Atlanta, GA, for petitioner. Lara Ann Englund, United States Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On October 14, 2011, Audrey McElroy (“petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa-1 to -34 (2006). The petition alleges that she developed urticarial vasculitis as a result of an influenza (flu) vaccine she received on Oct ober 15, 2008. Petition at ¶ 4.

On April 2, 2012, respondent filed a Rule 4(c) Report stating that there “is insufficient

scientific evidence to support a causal relationship between in fluenza vaccine and vasculitis,”

1 Because this decision contains a reasoned explan ation for the undersigned’s action in this case, the undersigned intends to post th is ruling on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is priv ileged or confidential; or (2) that includes medical files or similar files, the

disclosure of which would const itute a clearly unwarra nted invasion of privacy.” Vaccine Rule 18(b).

2 The National Vaccine Injury Compensation Prog ram is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. N o. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to

individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.2 and thus “compensation is not appropriate in this case.” Respondent’s Report at 8. However, the report also indicated that “respondent will not expe nd further resources to contest entitlement in

this matter” and recommended that “future proceedings be schedul ed to determine the type and amount of compensation that should be awarded in this case with re spect to petitioner’s

condition.” Id. at 8-9.

The Special Master assigned to this case at the time issued a Ruling on Entitlement on April 13, 2012, finding that petitioner provided suffici ent evidence to issue a ruling in her favor. A damages order was entered on April 20, 2012.

On September 19, 2014, respondent filed a Proffer on Award of Compensation (“Proffer”). In the Proffer, respondent repres ented that petitioner agre es with the proffered award. Based on the record as a whole, the under signed finds that petitione r is entitled to an

award as stated in the Proffer.

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

A. A lump sum payment of $223,039.45, in th e form of a check payable to petitioner, Audrey McElroy . This payment represents compensation for life care expenses expected to be incurre d during the first year after judgment ($16,571.46), pain and suffering ($200,000.00), a nd past reimbursable expenses ($6,467.99).

B. A lump sum payment of $633.32 , representing compensation for satisfaction of the State of Georgia Medicaid lien, payable jointly to petitioner and Georgia

Medicaid:

Georgia Department of Community Health

P.O. Box 1984 Atlanta, GA 30301-1984

Attn: Ms. Yvette Dimmons

Case No. 158258/0000235903

Petitioner agrees to endorse this payment to the Georgia Department of Community

Health.

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

described in the Proffer and the attachments to that Proffer.

Proffer ¶ II.

In the absence of a motion for review file d pursuant to RCFC Appendix B, the clerk of

the court SHALL ENTER JUDGMENT herewith. 3

3 Pursuant to Vaccine Rule 11(a) , entry of judgment is expedite d by the parties’ joint filing of notice renouncing the ri ght to seek review.IT IS SO ORDERED.

s/ Nora Beth Dorsey Nora Beth Dorsey Special MasterIN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

AUDREY MCELROY, ) ) Petitioner, ) )

v. ) No. 11

- 679V ) Special Master Nora Beth Dorsey

SECRETARY OF ) ECF HEALTH 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 Fox

, MSN, RN, CDDN , CNCLP, and

petitioner engaged Charlyne Butler Raih, PT, DPT, MHS, MBA, to provide an estimation of

Audrey McElroy ’s future vaccine

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

“vaccine related” is as described in the Chief Special Master’s Ruling on Entitlement filed April

13, 2012

. 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

Audrey McElroy , attached hereto as Tab A. 1 Respondent proffers that Audrey McElroy should

be awarded all items of compensation set forth in the life care plan and illustrate d 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.B. Lost Earnings

The parties agree that based upon the evidence of record, Audrey McElroy has not

suffered a loss of earnings. Therefore, respondent proffers that Audrey McElroy should not be

awar ded 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 Audrey McElroy should be awarded $ 2 00 ,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.

D. Past Unreimbursable Expenses

Evidence supplied by petitioner documents Audrey McElroy ’s expenditure of past

unreimbursable expenses related to h er vaccine

- related injury. Respondent proffers that

petitioner should be awarded past unreimbursable expenses in the amount of $ 6,467.99

.

Petitioner agrees.

E. Medicaid Lien

Respondent proffers that Audrey McElroy should be awarded funds to satisfy the State of

Georgia lien in the amount of $ 633.32 , which represents full satisfaction of any right of

subrogation, assignment, claim, lien, or cause of action the State of Georgia may have against

any individual as a result of any Medicaid payments the State of Georgia has made to

, or on

behalf of

, Audrey McElroy from the date of h er eligibility for benefits through the date of

judgment in this case as a result of h er vaccine

- relate d injury suffered on or about November 6,

2008 , under Title XIX of the Social Security Act.

2II. Form of the Award

The parties recommend that the compensation provided to Audrey McElroy should be

made through a combination of lump sum payments and futu re annuity payments 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 $ 223,039.45 , representing compensation for life care

expenses expected to be incurred during th e first year after judgment ($ 16,571.46 ), pain and

suffering ($ 2 00 ,000.00 ), and past unreimbursable expenses ($ 6,467.99 ), in the form of a check

payable to petitioner, Audrey McElroy

.

B . A lump sum payment of $ 633.32 , representing compensation for satisf action of the

State of Georgia Medicaid lien, payable jointly to petitioner and

Georgia Department of Community Health

P.O. Box 1984 Atlanta, GA 30301

- 1984

Attn: Ms. Yvette Dimmons

Case No: 158258/0000235903

Petitioner agree s to endorse this payment to the Georgia Department of Community Health

.

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 company 4 from

2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate reli ef. 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 co mpanies.

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 orga nizations:

3which 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 b e provided through

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

Audrey McElroy , only so long as Audrey McElroy is alive at the time a particular pa yment is

due. At the Secretary’ s sole discretion, the peri odic 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 describe only the total yearly sum to be paid to petitioner and do not require that the

payment be made i n 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 benef its 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

jud gment for medical items. Petitioner agrees.

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 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.

42. Life

- contingent annuity

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

Company only so long as s he

, Audrey McElroy , is alive at the time that a particular payment is

due. W ritten notice shall be provided to the Secretary of Health and Human Services and the

Life Insurance Company within twenty (20) days of Audrey McElroy ’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, Audrey McElroy : $ 223,039.45

B. Reimbursement for Medicaid Lien: $ 633.32

C

. An amount sufficient to purchase the annuity contract described

above in section II. C

.

Respectfully submitted,

JOYCE R. BRANDA Acting Assistant Attorney General

RUPA BHATTACHARYYA

Director Torts Branch, Civil Division

VINCENT J. MATANOSKI Deputy Director Torts Branch, Civil Division

ALTHEA W. DAVIS

Senior Trial Counsel Torts Branch, Civil Division

5s/ LARA A. ENGLUND

LARA A. ENGLUND Trial Attorney Torts Branch, Civil Division U.S. Department of Justice

P.O. Box 146 Benjamin Franklin Station

Wa shington, D.C. 20044

- 0146 Tel: (202) 307

- 3013

DATED: September 1 8 , 2014

6Appendix A: Items of Compensation for Audrey McElroy 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

2014 2015 2016 2017-Life

Medicare Supplement 5% M 1,555.08 1,555.08 1,555.08 1,555.08

Rheuma-tology Eval at JH 5% *

Dermatology 5% * 45.00 45.00 45.00 45.00

Primary Care 5% *

Rheumatologist 5% *

IVIG 5% *

Immunoglobulin 5% *

Port Plmnt 5% *

Lab Fees 5% *

Lipid Panel, HgB A1C, Venipuncture 5% *

Rx 5% 525.72 525.72 525.72 525.72

Ice Gel Packs 4% 216.66 216.66 216.66 216.66

Vasculitis Foundation Membership 4% 35.00 35.00 35.00 35.00

Personal Assistance 4% M 6,000.00 6,000.00 6,000.00 6,000.00

Case Mngr 4% M 2,160.00 1,080.00 1,080.00 720.00

Transport to Primary Care 4% 9.40 9.40 9.40 9.40

Transport to Emory 4% 70.50 70.50 70.50 70.50

Transport to Airport 4% 141.00

Transport to WalMart 4% 14.10 14.10 14.10 14.10

Transport to Baltimore 4% 799.00

Home Mods 0% 5,000.00

Pain and Suffering 200,000.00

Past Unreimbursable Expenses 6,467.99

Medicaid Lien 633.32

Annual Totals 223,672.77 9,551.46 9,551.46 9,191.46

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 ($16,571.46), pain and suffering ($200,000.00), and past unreimbursable expenses ($6,467.99): $223,039.45.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and the Georgia Department of Community Health, as reimbursement of the state's Medicaid lien: $633.32.
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.