In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS 

No. 18-0766V 

UNPUBLISHED 

MARK D SCARLETTE, 

 Petitioner, 

v. 

SECRETARY OF HEALTH AND 

HUMAN SERVICES, 

 Respondent. 

Chief Special Master Corcoran 

Filed: May 19, 2022 

Special Processing Unit (SPU); 

Damages Decision Based on Proffer; 

Influenza (Flu) Vaccine; GuillainBarre Syndrome (GBS) 

 

Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner. 

Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for 

Respondent. 

DECISION AWARDING DAMAGES1

 On May 31, 2018, Mark D. Scarlette 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 

the result of an influenza (“flu”) vaccination administered on November 8, 2016. Petition 

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

Masters. 

On May 3, 2019, a ruling on entitlement was issued finding Petitioner entitled to 

compensation. On May 19, 2022, Respondent filed a proffer on award of compensation 

(“Proffer”) indicating Petitioner should be awarded a lump sum payment of $444,619.80, 

representing compensation for life care expenses expected to be incurred during the first 

year after judgment ($24,893.57), lost earnings ($212,203.99), pain and suffering 

1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am 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 EGovernment 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 

300aa (2012). 
2

($205,000.00), past unreimbursable expenses ($2,522.24), and an amount sufficient to 

purchase an annuity contract subject to the conditions described in the attached Proffer 

and Appendix. Proffer at 3. In the Proffer, Respondent represented that Petitioner agrees 

with the proffered award. Id. Based on the record as a whole, I find that Petitioner is 

entitled to an award as stated in the Proffer. 

Pursuant to the terms stated in the attached Proffer, I award Petitioner the 

following: 

A. A lump sum payment of $444,619.80, (representing compensation for life 

care expenses expected to be incurred during the first year after judgment 

($24,893.57), lost earnings ($212,203.99), pain and suffering ($205,000.00), 

and past unreimbursable expenses ($2,522.24)), in the form of a check 

payable to petitioner, Mark D. Scarlette. 

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

conditions described in the attached Proffer and Appendix, that will provide 

payments for the life care items contained in the life care plan, as illustrated 

by the chart at Tab A (Appendix A), attached hereto, paid to the life insurance 

company from which the annuity will be purchased. 

These amounts represent compensation for all damages that would be available 

under Section 15(a). The Clerk of 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 COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

MARK D. SCARLETTE, 

 

 Petitioner, 

v. 

 

SECRETARY OF HEALTH AND 

HUMAN SERVICES, 

 

 Respondent.

 No. 18-766V 

 Chief Special Master Corcoran 

 ECF

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On May 31, 2018, Mark D. Scarlette (“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 he suffered Guillain-Barré Syndrome (“GBS”) as a result 

of receiving an influenza (“flu”) vaccination administered on November 8, 2016. Petition at 1. 

On May 2, 2019, the Secretary of Health and Human Services (“respondent”) filed his Rule 4(c) 

Report conceding that petitioner’s claim satisfies the requirements necessary to qualify as a 

Table injury under the Vaccine Injury Table. ECF No. 25. On May 3, 2019, the Chief Special 

Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 27. 

I. Items of Compensation

A. Life Care Items

Respondent engaged life care planner Laura Fox, MSN, BSN, RN, CLCP, and petitioner 

engaged life care planner Cynthia Wilhelm, Ph.D., to provide an estimation of petitioner’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. All items of compensation identified in the life care 
2 

plan are supported by the evidence, and are illustrated by the chart entitled Appendix A: Items of 

Compensation for Mark D. Scarlette, attached hereto as Tab A. Respondent proffers that 

petitioner should be awarded all items of compensation set forth in the life care plan and 

illustrated by the chart attached at Tab A.1 Petitioner agrees. 

 B. Lost Earnings

The parties agree that based upon the evidence of record, Mark D. Scarlette has suffered 

a loss of earnings. Therefore, respondent proffers that petitioner 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 Mark D. Scarlette’s lost earnings is $212,203.99. Petitioner agrees.

C. Pain and Suffering

Respondent proffers that petitioner should be awarded $205,000.00 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 his expenditure of past unreimbursable 

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

awarded past unreimbursable expenses in the amount of $2,522.24. Petitioner agrees.

II. Form of the Award 

 The parties recommend that the compensation provided to petitioner should be made 

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

 

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.
3

and request that the Chief Special Master’s decision and the Court’s judgment award the 

following:2

A. A lump sum payment of $444,619.80, representing compensation for life care 

expenses expected to be incurred during the first year after judgment ($24,893.57), lost earnings 

($212,203.99), pain and suffering ($205,000.00), and past unreimbursable expenses ($2,522.24), 

in the form of a check payable to petitioner, Mark D. Scarlette.

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 

 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. 
4 

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

Mark D. Scarlette, only so long as petitioner is alive at the time a particular payment is due. At 

the Secretary’s sole discretion, the periodic payments may be provided to 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 he, Mark D. Scarlette, 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 Mark D. Scarlette’s death. 

3. Guardianship

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

 

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.
5 

III. Summary of Recommended Payments Following Judgment

A. Lump Sum paid to petitioner, Mark D. Scarlette: $444,619.80

B. An amount sufficient to purchase the annuity contract described 

 above in section II.B. 

 Respectfully submitted,

 BRIAN M. BOYNTON 

Principal Deputy Assistant Attorney General

 

 C. SALVATORE D’ALESSIO

 Acting Director

 Torts Branch, Civil Division

 HEATHER E. PEARLMAN

Deputy Director

Torts Branch, Civil Division

 

 TRACI R. PATTON 

Assistant Director 

 Torts Branch, Civil Division

s/Colleen C. Hartley 

 COLLEEN C. HARTLEY

Trial Attorney

Torts Branch, Civil Division

U. S. Department of Justice

P.O. Box l46, Benjamin Franklin Station

Washington, D.C. 20044-0146

Tel: (202) 616-3644

Email: colleen.hartley@usdoj.gov

Dated: May 19, 2022
Appendix A: Items of Compensation for Mark D. Scarlette Page 1 of 1

ITEMS OF COMPENSATION G.R. * M

Lump Sum 

Compensation 

Year 1

Compensation 

Years 2-5

Compensation 

Year 6

Compensation 

Year 7

Compensation 

Years 8-Life

2022 2023-2026 2027 2028 2029-Life

Medicare Part B Premium 5% M 2,041.20 2,041.20

Medicare Part B Deductible 5% *

Neurologist 5% * 35.00 35.00 35.00 35.00 35.00

Orthopedist 5% * 35.00 35.00 35.00 35.00 35.00

Physical Therapy Evaluation 4% * 35.00 35.00 35.00 35.00 35.00

Individual Counseling 4% * 180.00 180.00

Physical Therapy 4% * 70.00 70.00 70.00 70.00 70.00

Case Manager 4% 400.00 400.00 400.00 400.00 400.00

Supportive Care/Respite 4% M 5,760.00 5,760.00 5,760.00 5,760.00 5,760.00

Home Modifications 0% 16,094.37

Light Weight Power Scooter 4% 1,500.00 150.00 150.00

Battery 4% 250.00 125.00

Service for Power WC 4% 100.00 100.00

Adaptive Aides 4% *

Walker 4% * 33.00 6.60 6.60 6.60 6.60

Quad Cane 4% 45.00 9.00 9.00 9.00 9.00

Hand Held Sprayer 4% 45.00 9.00 9.00 9.00 9.00

Portable Ramp 4% 268.00

Scooter Hitch 4% 2,000.00 200.00 200.00

Cyclobenzaprine 5% * 120.00 120.00 120.00 120.00 120.00

Lost Earnings 212,203.99

Pain and Suffering 205,000.00

Past Unreimbursable Expenses 2,522.24

Annual Totals 444,619.80 8,520.80 10,427.60 7,179.60 7,054.60

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 ($24,893.57), lost earnings ($212,203.99), pain and suffering ($205,000.00), and past unreimbursable 

expenses ($2,522.24): $444,619.80.

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.