# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18

- 1524 V
UNPUBLISHED

MICHAEL J. PERIARD

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: March 23, 2020

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

Barre Syndrome (GBS)

Matthew F. Belanger, Faraci Lange, LLP, Rochester, NY , for petitioner.

Ryan Daniel Pyles , U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On October 2, 2018

, Michael J. Periard 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 Barré syndrome (“GBS”) as a result of an influenza (“flu”) vaccina tion administered on November 22, 2014

. Petition at
1 . The case was assigned to the Special Processing Unit of the Office of Special
Masters.

On March 2, 2020

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

to compensation for GBS . On March 2, 2020

, R espondent filed a p roffer on a ward of compensation (“Proffer”) indicating P etitioner should receive an amount sufficient to purchase an annuity contract described in Section A of th e Proffer and a lump sum payment of $1,137,068.83 to P etitioner

. Proffer at 1

- 3

. In the Proffer, R espondent

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 pe rtinent subparagraph of 42 U.S.C. § 300aa (2012).2

represented that P etitioner agrees with the proffered award. Id. at 3. 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 the following:

a. An amount sufficient to purchase the annuity contract described in Section A of the proffer, paid to the life insurance company from which the annuity
will be purchased; and

b. A lump sum of $ 1,137,068.83 , in the form of a check payable to Petitioner.

This amount represents compensation for all damages that w ould be available under §
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.1 THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS

MICHAEL J. PERIARD,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. No. 18-1524V Chief Special Ma ster Brian H. Corcoran

ECF

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On February 24, 2020, respondent filed his Rule 4(c) Report, in which he recommended

that the Court find petitioner entitled to comp ensation, and on March 2, 2020, the Court entered

its Ruling on Entitlement, finding petitioner enti tled to compensation. Respondent now proffers

that petitioner receive an award as follows:

A. Life Care Items Beginning on th e First Anniversary of Judgment.

Respondent proffers an amount sufficient to purchase an annuity contract described

below in this Section A of this Proffer, paid to the life insurance company from which the

annuity will be purchased (the “Life Insurance Company”). 1

1 Notwithstanding references herein to “the Life Insurance Company” or “the annuity contract,” to satisfy the conditions set forth herein, in res pondent’s sole and absolu te discretion, respondent may purchase one or more annuity contracts fr om one or more life in surance companies. Moreover, the Life Insurance Company mu st 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 Service Claims Pa ying Rating: Aa3, Aa2, Aa1, or Aaa;2 The Secretary of Health and Human Services agrees to purchase an annuity contract from

the Life Insurance Company for the benefit of pe titioner, pursuant to which the Life Insurance

Company will agree to make payments periodica lly to petitioner for the following items of

compensation:

For future medical service and medication expenses, beginning on the first anniversary of the date of judgment, an annual amount of $3,931.00 to be paid up to the annivers ary of the date of judgment in year 2030, then beginning on th e anniversary of the date of judgment in year 2030 an annual amount of $2,000.00 to be paid up to the anniversary of the date of judgment in year 2054, then beginning on the anniversary of the date of judgment in year 2054 an annual amount of $1,000.00 to be paid for the remainder of petitioner’s life, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment.

At the sole discretion of the Secretary of Health and Human Se rvices, the periodic

payments may be provided to petitioner in mont hly, quarterly, annual or other installments. The

“annual amounts” set forth above describe only the total yearly sum to be paid to petitioner and

do not require that the payment be made in one annual installment. Peti tioner will continue to

receive the annuity payments from the Life Insurance Company only so long as petitioner is

alive at the time that a particular payment is due. Written notice to the Secretary of Health and

Human Services and the Life Insurance Company sh all be provided within twenty (20) days of

petitioner’s death.

The annuity contract will be owned solely a nd exclusively by the Secr etary of Health and

Human Services and will be purchased as soon as practicable following th e entry of a judgment

in conformity with this Proffer. The parties agree that upon the purchase of the annuity contract,

c. Standard and Poor’s Corporation Insu rer 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.3 the Secretary of Health and Huma n Services and the United States of America are released from

any and all obligations with resp ect to future annuity payments.

Petitioner authorizes responde nt to disclose documents filed by 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.

B. Remaining Compensation for Damages Available under 42 U.S.C. § 300aa-15(a).

In addition to the compensation proffered above in Section A of this Proffer, respondent

proffers a lump sum $1,137,068.83 in the form of a check payable to petitioner. 2 This amount

represents all remaining compensation for damages th at would be available under 42 U.S.C.

§ 300aa-15(a). 3

Petitioner has reviewed the foregoing and agre es with the proffered award as stated above

in Sections A and B of this Proffer. 4

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

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

2 This sum consists of $3,931.00 for future life car e plan expenses for the first year following the entry of judgment; $11,430.83 for past unreimbur sed expenses; $160,000.00 for past and future pain and suffering at net present value; and $961,707.00 for past and future loss of earnings at net present value.

3 Should petitioner die prior to en try of judgment, the parties rese rve the right to move the Court for appropriate relief. In particular, res pondent would oppose any award for future medical expenses, future pain and sufferi ng, and future lost wages.

4 This proffer does not include any award for at torneys’ fees and costs that may be awarded pursuant to 42 U.S.C. § 300aa-15(e).4 CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division

ALEXIS B. BABCOCK
Assistant Director Torts Branch, Civil Division

s/ RYAN D. PYLES

RYAN D. PYLES Trial Attorney Torts Branch, Civil Division U.S. Department of Justice

P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-9847

DATED: March 2, 2020