# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 13

- 605 V

Filed: November 14, 2014

* * * * * * * * * * * * * * * UNPUBLISHED

V ICTORIA MCWILLIAMS

, *

* Special Master Hamilton

- Fieldman

Petitioner

, *

*

v. *

* Decision on Proffer; Damages;

SECRETARY OF HEALTH * Influenza ( “ Flu ” ) Vaccine;

AND HUMAN SERVICES, * Cellulitis.

*

Respondent. *

*

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

Alfred V. Altopiedi

, Alfred V. Altopiedi, P.C., Springfield, PA, for P etitioner

. Gordon Shemin

, United States Department of Justice, Washington, D

. C ., for R espondent.

DECISION AWARDING DAMAGES 1

On August 23, 2013

, Victoria McWilliams ( “ P etitioner ” ) filed a petition pursuant to the

National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa

- 1 to

- 34 (2006).

Petitioner alleges that she suffered from cellulitis as a result of an influenza ( “ flu ” ) vaccination

she received on October 24, 2011.

Respondent has conceded that P etitioner has satisfied all leg al prerequisites for

compensation under the Vaccine Act and has recommended that compensation be awarded to

1 Because this decision contains a reasoned explanation for the undersigned’s action in this case,

the undersigned intends to post this ruling on the website of th e 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 wit hin 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 privileged or confidential; or (2) that includes medical files or similar files, the

disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule

18(b).

2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National

Childhood Vaccine Injury Act of 1986, Pub. L. No. 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.P etitioner

. R espondent’s Report at 6

- 7 , filed November 20, 2013

.

Informed by R espondent’s concession that an award of damages is appropriate, the

und ersigned finds that P etitioner is entitled to compensation under the Vaccine Act.

On November 13, 2014

, R espondent filed a Proffer on Award of Co mpensation

( “ Proffer ” ). In the P roffer, R esp ondent represent s that P etitioner agree s with the proffered

award. Based on the record as a whole, the undersigned finds that P etitioner is entitled to an

award as stated in the Proffer.

Pursuant to th e terms stated in the attached P roffer, the undersigned awards P etitioner :

A. A lump sum payment of $692,091.67, representing compensation for life care

expenses expected to be incurred during the first year a f ter j udg ment

($18,780.30), lost earnings ($ 4 93,737.90), pain and suffering ($167,644.07),

and past u nreimbursable expenses ($11,929.40), the form of a check payable

to Petitioner ; and

B. An amount sufficient to purchase the annuity contract described in the

Proffer section II

. B.

Proffer ¶ II

.

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

the court SHALL ENTER JUDGMENT herewith. 3

IT I S SO ORDERED.

s/ Lisa Hamilton

- Fieldman

Lisa Hamilton

- Fieldman

Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the partie s’ joint filing of

notice renouncing the right to seek review.

2IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________ )

VICTORIA McWILLIAMS, )

)

Petitioner, ) No. 13

- 605V

) Special Master Hamilton

- Fieldman

v. ) ECF

)

SECRETARY OF 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 L aura Fox

, MS N

, RN, CNCLP, and petitioner

engaged Alex Karras, OTR, CRC, CCM, MSCC, CLCP, to provide an estimation of Victoria

McWilliams ’s future vaccine

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

“vaccine related” is as described in respondent’s Rule 4(c) R eport filed November 20, 2013,

conceding entitlement in this case

. 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 Victoria McWilliams , attached hereto as Tab A. 1 Respondent proffers that

Victoria McWilliams 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.

- 1

- Case 1:13-vv-00605-UNJ Document 28 Filed 11/13/14 Page 1 of 5B. Lost Earnings

The parties agree that based upon the evidence of record, Victoria McWilliams has

suffered a past loss of earnings and will continue to suffer a loss of earning s in the future.

Therefore, respondent proffers that Victoria McWilliams should be awarded lost earnings as

provided under the Vaccine Act, 42 U.S.C. § 300aa

- 15(a)(3)(A). Respondent proffers that the

appropriate award for Victoria McWilliams ’s lost earnings is $ 493,737.90 . Petitioner agrees.

C. Pain and Suffering

Respondent proffers that Victo ria McWilliams should be awarded $ 167,644.07 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 Victoria McWilliams ’s expenditure of past

unreimbursable expenses related to h er vaccine

- related injury. Respondent proffers that

petitioner should be awarded past unreimbursable expe nses in the amount of $ 11,929.40

.

Petitioner agrees.

E. Medicaid Lien

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

II. Form of the Award

The parties recommend that the compensation provided to Victoria McWilliams should

be made through a combination of lump sum payments and future annuity payments as describ ed

- 2

- Case 1:13-vv-00605-UNJ Document 28 Filed 11/13/14 Page 2 of 5below, and request that the Special M aster’s decision and the Court’ s judgment aw ard the

following: 2

A. A lump sum payment of $ 692,091.67 , representing compensation for life care

expenses expected to be incurred during the first year after judgment ($ 18,780.30 ), lost earnings

($ 4 93,737.90 ), pain and suffering ($ 1 67,644.07 ), and past unreimbursable expenses

($ 11,929.40 ), in the form of a check payable to petitioner, Victoria McWilliams

.

B . An amount sufficient to purchase an annuity contract, 3 subject to the conditions

described below, that will provide payments for the life care item s 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 purchase of an annuity, which annuity shall make payments directly to petitioner,

Victoria McWilliams , only so long as Victoria McWilliams is alive at the time a particular

pa yment is due. A t the Secretary’ s sole discretion, the periodic payments may be provided to

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 The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of

any mandat ory 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.

- 3

- Case 1:13-vv-00605-UNJ Document 28 Filed 11/13/14 Page 3 of 5petitioner 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 an d do not require

that the payment be made in 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 al l 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

, Victoria McWilliams , 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 Victoria McWilliams ’s death.

3. Guardianship

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

III. Summary of Recommended Payments Following Judgment

A. Lump Sum paid to petitioner, Victoria McWilliams : $ 6 92,091.67

B

. An amount sufficient to purchase the annuity contract described

above in section II. B

.

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 Vacc ine Injury Compensation Program System

of Records, No. 09

- 15

- 0056.

- 4

- Case 1:13-vv-00605-UNJ Document 28 Filed 11/13/14 Page 4 of 5Respectfully submitted,

JOYCE R. BRANDA

Acting Assistant Attorney General

RUPA BHATTACHARYYA

Director

Torts Branch, Civil Division

VINCENT J. MATANOSKI

Deputy Director

Torts Branch, Civil Division

HEA THER L. PEARLMAN

Senior Trial Attorney

Torts Branch, Civil Division

s / Gordon Shemin

GORDON SHEMIN

Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, D.C. 20044

- 0146

Telephone: (202) 616

- 4208

Dated: November 13

, 2014.

- 5

- Case 1:13-vv-00605-UNJ Document 28 Filed 11/13/14 Page 5 of 5Appendix A: Items of Compensation for Victoria McWilliamsPage 1 of 1ITEMS OF COMPENSATION G.R. * MLump SumCompensationYear 1CompensationYears 2-3CompensationYears 4-8CompensationYear 9CompensationYear 10CompensationYears 11-Life2014 2015-2016 2017-2021 2022 2023 2024-LifeCOBRA5% 2,386.32Medicare Part B5% M 1,258.80Medicare Part B Deductible5% *Medicare Suppl5%Infectious Disease5% * 80.00Orthopedic5% * 40.00OT4% * 160.00CT Scan Right Shoulder5% * 40.00MRI of Left Shoulder5% *X-ray of Right Shoulder5% * 40.00Grab Bars4% 15.5615.56Hand Held Shower4% 43.1343.13Long Handled Brush4% 23.0323.03Spinner Knob Steering Wheel4% 24.2724.27Shoulder Abduction Pillow4% * 119.9940.0040.0040.0040.0040.00Nerve Blocks5% *Home Health Aide4% M 15,808.0015,808.0019,760.0027,740.0027,740.0027,740.00Lost Earnings493,737.90Pain and Suffering167,644.07Past Unreimbursable Expenses11,929.40Annual Totals692,091.6717,106.8019,800.0027,780.0027,885.9927,780.00Note: 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 ($18,780.30), lost earnings ($493,737.90), pain and suffering ($167,644.07), and past unreimbursableexpenses ($11,929.40): $692,091.67.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.In respondent's discretion items denoted with an "M" payable in twelve monthly installments totaling the annual amounts indicated.Case 1:13-vv-00605-UNJ Document 28-1 Filed 11/13/14 Page 1 of 1