In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 13-605V

Filed: November 14, 2014

 

* * * * * * * * * * * * * * * UNPUBLISHED

VICTORIA 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 Petitioner.

Gordon Shemin, United States Department of Justice, Washington, D.C., for Respondent.

DECISION AWARDING DAMAGES1

On August 23, 2013, Victoria McWilliams (“Petitioner”) 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 Petitioner has satisfied all legal 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 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 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.

 
Petitioner. Respondent’s Report at 6-7, filed November 20, 2013. 

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

undersigned finds that Petitioner is entitled to compensation under the Vaccine Act.

On November 13, 2014, Respondent filed a Proffer on Award of Compensation 

(“Proffer”). In the Proffer, Respondent represents that Petitioner agrees with the proffered 

award. Based on the record as a whole, the undersigned finds that Petitioner 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 $692,091.67, representing compensation for life care 

expenses expected to be incurred during the first year after judgment 

($18,780.30), lost earnings ($493,737.90), pain and suffering ($167,644.07), 

and past unreimbursable 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 IS 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 parties’ joint filing of 

notice renouncing the right to seek review.

2

 
IN 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 Laura Fox, MSN, 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) Report 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.

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Case 1:13-vv-00605-UNJ Document 28 Filed 11/13/14 Page 1 of 5
B. 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 earnings 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 Victoria 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 her vaccine-related injury. Respondent proffers that 

petitioner should be awarded past unreimbursable expenses 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 described 

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

($493,737.90), pain and suffering ($167,644.07), 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 items contained in the life care plan, 

as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company4 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 

payment is due. At 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 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 Company, Insurance Company Claims Paying Ability Rating: AA-, AA, 

AA+, or AAA. 

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Case 1:13-vv-00605-UNJ Document 28 Filed 11/13/14 Page 3 of 5
petitioner in monthly, quarterly, annual 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.

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%) 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 she, 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 competent 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: $ 692,091.67

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 Vaccine Injury Compensation Program System 

of Records, No. 09-15-0056.

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

HEATHER 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.

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Case 1:13-vv-00605-UNJ Document 28 Filed 11/13/14 Page 5 of 5
Appendix A: Items of Compensation for Victoria McWilliams 

ITEMS OF COMPENSATION G.R. * M

Lump Sum 

Compensation 

Year 1

Compensation 

Years 2-3

Compensation 

Years 4-8

Compensation 

Year 9

Compensation 

Year 10

Compe

Years 

2014 2015-2016 2017-2021 2022 2023 2024

COBRA 5% 2,386.32

Medicare Part B 5% M 1,258.80Medicare Part B Deductible 5% *Medicare Suppl 5%Infectious Disease 5% * 80.00

Orthopedic 5% * 40.00

OT 4% * 160.00

CT Scan Right Shoulder 5% * 40.00

MRI of Left Shoulder 5% *X-ray of Right Shoulder 5% * 40.00

Grab Bars 4% 15.56 15.56

Hand Held Shower 4% 43.13 43.13

Long Handled Brush 4% 23.03 23.03

Spinner Knob Steering Wheel 4% 24.27 24.27

Shoulder Abduction Pillow 4% * 119.99 40.00 40.00 40.00 40.00 Nerve Blocks 5% *Home Health Aide 4% M 15,808.00 15,808.00 19,760.00 27,740.00 27,740.00 27Lost Earnings 493,737.90Pain and Suffering 167,644.07Past Unreimbursable Expenses 11,929.40

Annual Totals 17,106.80 692,091.67 19,800.00 27,780.00 27,885.99 27

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 ($18,780.30), lost earnings ($493,737.90), pain and suffering ($167,644.07), and past unreimbursable expenses ($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.

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