# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19

- 1545 V

UNPUBLISHED

MEI H. L I

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: January 19, 2022

Special Processing Unit (SPU); Damages Decision Based on Proffer; Influenza (Flu) Vaccine; Guillain

Barre Syndrome (GBS)

Timo thy James Lessman, Knutson & Ca se y Law Firm, Mank ato, MN , for Petitioner.

Darryl R. Wishard , U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On October 3, 2019 , Mei Li 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 from Guill ain

- Barre Syndrome ( “ GBS ” ) as a
result of an influenza ( “ flu ” ) vaccine sh e received on October 17, 2016

. Petition at 1

. The

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

On July 7, 2020

, a ruling on entitlement was issued , finding P etitioner entitled to compensation for Table injury of G BS following a flu vaccination

. ECF No. 21. On January 18, 2022

, R espondent filed a p roffer on a ward of compensation (“Proffer”) indicating

P etitioner should be awarded the following compensation:

• A lump sum of $ 180,765.34 , representing $1 60 ,000.00 for Petitioner’s pain and suffering

, $ 16,54 7.73 for first

- year life care expenses, a nd $4 ,217.61 for past

1 Because this unpublished D ecision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 D ecision 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2 un reimburs ed expe nses, to be paid in the form of a check payable to P etitioner

. Proffer at ¶ II( A).

• A n amount sufficient to purchase the annuity contract described in the Proffer at Paragraph II(B). Proffer at ¶ II( B ).

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

award. Id. 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 payment of $ 180,765.34 in the form of a check payable to P etitioner and an

a mount sufficient to purchase the annuity contract des c rib ed in the Proffer at Paragraph II(B). Th e s e amount s represent compensation for all damages that w ould be

available under Section 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 filing of notice renouncing the right to seek review.IN THE UNITED STATES CO URT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

MEI H. LI,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. 19-1545V Chief Special Master Corcoran

ECF

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On October 3, 2019, Mei H. Li (“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 she suffere d Guillain-Barré Syndrome (“GBS” ) resulting from an influenza

(“flu”) vaccination she re ceived on October 17, 2016. See Petition at 1. On July 1, 2020, the

Secretary of Health and Human Services (“resp ondent”) filed his Rule 4(c) Report conceding

that petitioner suffered the Table injury of GB S following a flu vaccine within the Table time

period and that she is entitled to compensation. See ECF No. 20. Accordingly, on July 7, 2020,

the Chief Special Master issued a Ruling on Entitl ement, finding that petitioner was entitled to

vaccine compensation for GBS following the in fluenza vaccine she received on October 17,

2016. See ECF No. 21.

I. Items of Compensation

A. Life Care Items

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

petitioner engaged Tresa Johns on, RN, BSN, CNLCP, CMC, to provide an estimation of

petitioner’s future vaccine-injury related needs. For the purposes of this proffer, the term2 “vaccine related” is as described in the re spondent’s Rule 4(c) Report. All items of

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

the chart entitled Appendix A: It ems of Compensation for Mei H. Li, attached hereto as Tab A.

Respondent proffers that petitione r should be awarded all items of compensation set forth in the

life care plan and illustrated by the chart a ttached at Tab A. Petitioner agrees.

B. Pain and Suffering

Respondent proffers that petitioner should be awarded $160,000.00 in actual and

projected pain and suffering. This amount refl ects 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 petitione r documents her expenditure of past unreimbursable

expenses related to her vaccine-related injury. Respondent proffers that petitioner should be

awarded past unreimbursable expenses in the amount of $4,217.61. Petitioner agrees.

II. Form of the Award

The parties recommend that the compensati on provided to petitioner should be made

through a combination of lump sum payments and future annuity payments as described below,

and request that the Special Ma ster’s decision and the Court’ s judgment award the following: 1

A. A lump sum payment of $180,765.34, re presenting compensation for life care

expenses expected to be incurred during the first year after judgme nt ($16,547.73), pain and

1 Should petitioner die prior to entry of judgment, the partie s reserve the right to move the Court for appropriate relief . In particular, respondent w ould oppose any award for future medical expenses, future lost earnings, and future pain and suffering.3 suffering ($160,000.00), and past unreimbursable e xpenses ($4,217.61) in the form of a check

payable to petitioner, Mei H. Li.

B. An amount sufficient to purchase an annuity contract, 2 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 3 from

which the annuity will be purchased. 4 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 di rectly to petitioner,

Mei H. Li, only so long as petitioner is alive at the time a particular payment is due. At the

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

quarterly, annual, or other installments. The “an nual 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.

2 In respondent’s discretion, respondent ma y purchase one or more annuity contracts from one or more life insurance companies.

3 The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any mandato ry 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 Servi ce Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;

c. Standard and Poor's Corporation In surer 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.

4 Petitioner authorizes the di sclosure of certain documents filed by the petitioner in this case consistent with the Privacy Act and the ro utine uses described in the National Vaccine Injury Compensation Program Sy stem of Records, No. 09-15-0056.4 1. Growth Rate

Respondent proffers that a four percent (4%) growth rate should be applied to all nonmedical life care items, and a five percent (5%) grow th rate should be appl ied to all medical life

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

payments should grow as follows: four percen t (4%) compounded annually from the date of

judgment for non-medical items, and five per cent (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 she, Mei H. Li, is aliv e 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 Mei H. Li’s death.

3. Guardianship

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

III. Summary of Recommended Payments Following Judgment

A. Lump Sum paid to petitioner, Mei H. Li: $180,765.34

B. An amount sufficient to purchas e the annuity contract described

above in section II.B.5 Respectfully submitted,

BRIAN M. BOYNTON Acting Assistant Attorney General

C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division

HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division

ALEXIS B. BABCOCK

Assistant Director Torts Branch, Civil Division

s/ Darryl R. Wishard

DARRYL R. WISHARD

Assistant Director Torts Branch, Civil Division U.S. Department of Justice

P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-4357

Dated: January 18, 2022Appendix A: Items of Compensation for Mei H. Li Page 1 of 1

ITEMS OF COMPENSATION G.R. * M Lump Sum Compensation

Year 1 Compensation

Year 2 Compensation

Years 3-4 Compensation

Years 5-Life

2022 2023 2024-2025 2026-Life

Medicare Adv Deductible 5% 150.00 150.00 150.00 150.00

Primary Care Provider 5% * 18.10 18.10 18.10 18.10

EMG 5% * 33.10

Orthopedist 5% * 24.75 24.75 24.75 24.75

Swallow Study 5% * 79.20

Physical Therapy Evaluation 4% * 12.00 12.00 12.00 12.00

Physical Therapy 4% * 180.00 180.00 60.00 60.00

Gym Membership 4% *

Tylenol 4% M 61.98 61.98 61.98

Bengay Patches 4% M 370.11 370.11 61.98 370.11

Metamucil 4% M 70.41 70.41 370.11 70.41

Dulcolax 4% M 262.51 262.51 70.41 262.51

Walker 4% 184.64 30.77 262.51 30.77

Manual Wheelchair 4% * 42.50 8.50 8.50

Wheelchair Cushion 4% * 7.95 2.65 30.77 2.65

Cushion Cover 4% 20.68 10.34 8.50 10.34

Wheelchair Pack 4% 36.22 7.24 2.65 7.24

Portable Ramp 4% 508.50 10.34

Poise Pads 4% M 356.72 356.72 7.24 356.72

Rocker Knife 4% 58.20 11.64 11.64

Hand Held Shower 4% 35.92 7.18 356.72 7.18

Raised Toilet Seat 4% 83.87 16.77 11.64 16.77

Grab Bars & Install 4% 205.00 7.18

Tub Transfer Bench 4% 132.93 26.59 16.77 26.59

Extension of Driveway 4% 2,800.00

Ramp 4% 1,980.00 26.59

Life Alert 4% M 589.40 539.40 539.40

Non-Skilled Care 4% M 8,243.04 8,243.04 12,364.56

Pain and Suffering 160,000.00 539.40

Past Unreimbursable Expenses 4,217.61 8,243.04

Annual Totals 180,765.34 10,410.70 10,290.70 14,412.22

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 ($16,547.73), pain and suffering ($160,000.00), and past unreimbursable expenses ($4,217.61): $180,765.34.
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.