# 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UNPUBLISHED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 Liti gation, Greensboro, NC, for Petitioner.

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

DECISION AWARDING DAMAGES 1

On May 31, 2018, Mark D. Scarlette f iled a petition for compensation under the National Vaccine Injury Compensati on 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 ent itlement was issued findi ng 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 expens es expected to be incurred during the first year after judgment ($24,893.57), lost earn ings ($212,203.99), pain and suffering

1 Because this unpublished Decision contains a reas oned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 availa ble 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 whic h would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits with in this definition, I will r edact 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 Ac t will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2 ($205,000.00), past unreimbursabl e 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 repres ented 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 dur ing the first year after judgment ($24,893.57), lost earnings ($212,203.99), pain an d 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 Pr offer and Appendix, that will provide payments for the life care items contai ned in the life care plan, as illustrated by the chart at Tab A (Appe ndix A), attached hereto, paid to the life insurance company from which the annuity will be purchased.

These amounts represent compensation fo r 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 c an 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

- 766 V

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”), a lleging that he suffered Guillain

- Barré Syndrome (“GBS”) as a result

of receiving a n 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 f uture

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 care2 plan are supported by the evidence, and are illustrat ed 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 attach ed 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

Ev idence supplied by petitioner documents h is expenditure of past unreimbursable

expenses related to h is vaccine

- related injury. Respondent proffers that petitioner should be

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

II. Form of the Award

T he parties recommend that the compensation provided to petitioner should be made

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

1 The chart at Tab A illustrates the annua l 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 M aster’s decision a nd 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 sufferin g ( $ 20 5 ,000.00 )

, and past unreimbursable expenses ($2,522.24),

in the form of a chec k 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 payment s 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 4 from

w hich 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 Insu rance 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 pa yme nt is due. At

the Secretary’ s sole discretion, the periodic payments may be provided to petitioner 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 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 non

medical 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 f ive 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. Scarlett e , 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 cont ract d escribed

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

Tri al 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, 2022Appendix 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.