In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15-124V

(to be published)

* * * * * * * * * * * * * * * * * * * * * * * * * Chief Special Master Corcoran

CHRISTINE DELOZIER, *

parent and next friend of L.T., a minor, *

* Filed: February 22, 2021

Petitioner, * 

*

v. *

*

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

*

Respondent. *

*

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

ORDER (1) GRANTING IN PART MOTION TO APPOINT FUTURE CARE DAMAGES 

EXPERT, AND (2) DENYING MOTION TO APPOINT ECONOMIST1

On February 9, 2015, Christine DeLozier, as parent and next friend of L.T., a minor, filed 

a petition seeking compensation under the National Vaccine and Injury Compensation Program 

(the “Vaccine Program”).

2 (ECF No. 1) (“Petition”). Ms. DeLozier alleged that L.T. suffered from 

alopecia areata (“AA”) attributable to a hepatitis B vaccine (“HBV vaccine”) L.T. received on 

November 6, 2012.

After a 2019 entitlement hearing, I ruled partially in favor of Petitioner, finding that she 

had established only that the HBV vaccine had caused a single instance of AA—not the underlying 

condition itself, and therefore not any subsequent outbreaks, none of which had been demonstrated 

to be the product of the first instance of hair loss. I thereafter awarded damages in the total sum of 

1 This Order will be posted on the Court of Federal Claims’ website in accordance with the E-Government Act of 

2002, 44 U.S.C. § 3501 (2012). This means that the Order will be available to anyone with access to the internet. 

As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Order’s inclusion of certain 

kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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). Otherwise, the whole Order will be 

available to the public in its current form. Id.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 

100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”). 

All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.
2

$50,000.00, reflective of actual pain and suffering; Petitioner requested no other damages 

associated with treatment of the single instance of AA at issue.

Petitioner appealed my damages determination and was successful, with the Court of 

Federal Claims determining that in fact every subsequent AA occurrence L.T. experienced (or 

might experience) post-vaccination was equally attributable to the single HBV vaccine she 

received in 2012, given that the underlying condition was known to be chronic. DeLozier v. Sec’y 

of Health & Hum. Servs., -- Fed. Cl. --, 2021 WL 1651406 (2021). I thereafter issued an Order 

instructing Petitioner to prepare and provide Respondent with a revised damages demand 

reflecting (a) costs associated with treatment of AA recurrences not covered by my initial damages 

decision, (b) costs of future care for L.T.’s condition, and (c) additional pain and suffering 

commensurate with the expanded nature of Petitioner’s injury as outlined by the Court’s Remand 

Order. Damages Order, dated Feb. 5, 2021 (ECF No. 87). In addition, because this matter is close 

to six years old, I urged the parties to address the issue as expeditiously as possible. Id. at 2.

The same day as my Order, Petitioner filed a motion seeking leave to retain a life care 

planner (“LCP”) who could opine to the future costs Petitioner is likely to incur in treating her AA. 

See generally Motion, dated Feb. 5, 2021 (ECF No. 88) (“First Mot.”). The one-page motion 

provided no argument as to why an LCP was warranted in this case. 

Respondent filed his opposition to Petitioner’s motion on February 10, 2021. Response, 

filed on Feb. 10, 2021 (ECF No. 89) (“First Resp.”). Respondent argued that an LCP was 

unnecessary in this case because expenses associated with past AA occurrences “should already 

be known” to Petitioner, and future costs could easily and fairly be estimated based on that kind 

of evidence. Respondent also noted that in other cases involving vaccine-induced hair loss, the 

majority of awarded damages consisted of pain and suffering awards, with treatment costs making 

up a significantly smaller proportion of the awards. First Resp. at 1 (citing Waterman v. Sec’y of 

Health & Hum. Servs., No. 13-44V, 2016 WL 3247581, at *1 (Fed. Cl. Spec. Mstr. May 12, 2016)). 

Respondent did not, however, point to published decisions so establishing (which I have previously 

noted do not exist), and instead referenced only his own internal records from proffered or settled 

cases. Overall, Respondent maintained that the scope of this case did not justify the cost or time 

that an LCP would entail. First Resp. at 2.

Before I could rule on Petitioner’s first motion, Petitioner filed a second motion on 

February 16, 2021, seeking leave to appoint another expert—this time, an economist who could 

calculate the reduction of L.T.’s future pain and suffering sum to net present value. Motion, dated 

Feb. 16, 2021 (ECF No. 90) (“Second Mot.”) at 2. Petitioner also took advantage of the opportunity 

the Second Motion provided to offer the argument missing from the First Motion for why an LCP 

was warranted. Id. at 1–2. Thus, she referenced exhibits from the underlying entitlement phase of 

the matter, noting that both L.T.’s treater as well as Petitioner’s causation expert had made 

comments establishing the serious nature of her condition—that some of her hair loss was 

purportedly already permanent, and that she was proving resistant to treatment. Id. at 1.
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Respondent filed another response in opposition to Petitioner’s Second Motion. Response, 

filed Feb. 17, 2021 (ECF No. 90) (“Second Resp.”). Respondent renewed his arguments against 

the appointment of an LCP—again advocating for less time consuming and burdensome means of 

obtaining the relevant damages information. Id. at 1–2. Regarding Petitioner’s request to hire an 

economist, Respondent pointed out that Petitioner is already seeking the maximum $250,000.00 

damages award for pain and suffering, thus potentially rendering moot the need to reduce to present 

value any future pain and suffering component. Id. at 2.

ANALYSIS

Whether Ms. DeLozier should be permitted to retain the experts her motions request

presents a question reserved to a special master’s discretion. The Vaccine Rules empower special 

masters to evaluate and manage the scope of evidence-gathering (including what is done to 

calculate damages) in any case before them as part of their control over discovery generally (which 

is explicitly not a matter of right). See Vaccine Rules 7(a) and Rule 3(b)(1)–(2) (special master 

authority over conduct of proceedings includes “taking such evidence as may be appropriate” and 

“endeavoring to make the proceedings expeditious, flexible, and less adversarial, while at the same 

time affording each party a full and fair opportunity to present its case and creating a record 

sufficient to allow review of the special master’s decision”) (emphasis added). Such guidelines are 

comparable to those governing discovery procedures in the United States Court of Federal Claims, 

with their emphasis on avoiding discovery that is “unreasonably cumulative or duplicative, or can 

be obtained from some other source that is more convenient, less burdensome, or less expensive.” 

CFCR 26(b)(2)(C)(i). 

Approval of a damages expert also flows from the broad discretion afforded special masters 

in determining whether costs incurred in the prosecution of a claim were reasonable. Section 

15(e)(1)(A)–(B); Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 

F.3d 1375 (Fed. Cir. 1994). Indeed, special masters may reduce fees and costs awards sua sponte, 

apart from objections made by Respondent and without providing a petitioner notice and 

opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 208–09 

(2009); Perreira, 27 Fed. Cl. at 34 (special master has “wide discretion in determining the 

reasonableness” of attorney’s fees and costs). And reasonableness determinations regarding an 

expert’s requested fees are “subject to the same reasonableness standards as fees for attorneys.” 

Frantz v. Sec’y of Health & Hum. Servs., 146 Fed. Cl. 137, 145 (2009). 

Program petitioners frequently rely upon expert testimony to prove causation, as was the 

case in the present matter—but the same is not true of damages calculations pertaining to actual or 

anticipated treatment costs. In the vast majority of cases, damages can be established by reference 

to documentation (e.g., doctors’ bills, prescription receipts, wage slips or W-2 forms) or any other 

evidence showing an incurred cost for the vaccine-related injury, future needs, or suffering 
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associated with the injury. Treating physicians familiar with the nature of a petitioner’s injury may 

also be able to weigh in on the future treatments a vaccine-caused condition will likely require. 

See, e.g., McErlean v. Sec’y of Health & Hum. Servs., No. 13-543V, 2016 WL 5390167, at *2 

(Fed. Cl. Spec. Mstr. Sept. 2, 2016) (denying a petitioner’s motion for reconsideration after the 

special master declined to award costs relating to the retention of a life care planner).

An LCP, by contrast, is a specialized kind of expert best reserved for particularly complex 

and difficult damages cases involving truly life-altering, all-encompassing injuries impacting 

every aspect of the injured vaccinee’s life. Because LCPs are expensive and can take a great deal 

of time to finalize a report (since they often must travel to visit with the injured party), they are 

not appropriate in less complex cases. Lampe v. Sec'y of Health & Hum. Servs., 219 F.3d 1357, 

1361 (Fed. Cir. 2000); McErlean 2016 WL 5390167, at *1–2 (cases involving transient injuries, 

scarring, or focal injuries are often limited in the scope of damages and thus do not require life 

care plans).

Petitioner’s First Motion does not establish sufficient grounds for appointment of an LCP 

in this case (and that remains the case even if I consider the arguments made in the Second 

Motion—arguments that should have been included in the first). First, I do not find it likely that 

calculation of damages in this case presents the complex issues that a more severe and intractable

injury (say, a person whose vaccine-induced disabilities require both extensive future treatment as 

well as home modifications), would involve, and which would require expert assistance to 

comprehend. Indeed—it is telling that Petitioner previously asked for no out-of-pocket damages 

for the two-year AA occurrence that I agreed was likely vaccine-caused.3 This strongly suggests 

that most of the other compensable treatment costs incurred to date are likely to be mostly covered 

by insurance, or are de minimis. This component of damages needs no LCP to be calculated.

Second, Petitioner has not demonstrated than an LCP is required in this case to help 

calculate L.T.’s future treatment costs. Respondent has also accurately pointed out that damages 

awarded in prior alopecia injury cases do not suggest that determining future treatment costs is 

particularly difficult. See Second Resp. at 2. Petitioner should readily be able to ascertain such 

future costs through discussions with L.T.’s treating dermatologists, who are knowledgeable of 

L.T.’s condition and anticipated needs, can identify and predict the nature and frequency of those 

needs, and can likely provide reasonable and fair estimates of associated costs given their area of 

expertise. 

Despite the above, I anticipate some reasonable costs associated with obtaining the 

assistance of treaters who can knowledgeably propose the kinds of treatments Petitioner will likely 

incur for L.T. To that end, Petitioner may retain a treater/expert who can assist her in formulating 

her overall damages demand, and I will reimburse the cost of that treater’s time. But she may not 

3 See Petitioner’s Brief in Support of Damages, filed May 22, 2020 (ECF No. 72), at 1. 
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retain an independent, professional LCP to provide her counsel with a detailed report setting forth 

damages components. Counsel is experienced enough in the Program to do this work himself.

Finally, I deny Petitioner’s Second Motion in its entirety. As is the case with LCPs, 

economists are not required in every damages case—even where the calculation at issue involves 

some math. Sabella, 86 Fed. Cl. at 222 (affirming the special master’s decision to no compensate 

a successful petitioner for the work of an expert who prepared an economic analysis of petitioner’s 

lost earning capacity). Here, Petitioner has not demonstrated that this kind of expert assistance will 

prove necessary. Because pain and suffering is statutorily capped at $250,000.00 in the Vaccine 

Program (Section 15(a)(4)), and because Petitioner has already indicated her intent to seek an 

award at the cap (Second Mot. at 2), it is not a given that an economist’s input will be needed to 

“reach” it. I might well find that actual pain and suffering to date exceeds the cap—and thus be 

able to award it without any consideration of future pain and suffering.

In addition, even if I determine that pain and suffering awarded in this case should include 

a future component, the process for reducing it to net present value is not inherently difficult. 

Rather, the only semi-thorny issue posed by net present value calculations is the proper formula to 

be applied. But special masters are routinely tasked with making damages determinations 

accounting for future pain and suffering, and there are many decisions in which they propose the 

proper formula to be used in doing so. See, e.g., Dillenbeck v. Sec’y of Health & Hum. Servs., No. 

17-428V, 2019 WL 4072069, at *15 (Fed. Cl. Spec. Mstr. July 29, 2019), aff’d in rel. part, 147 

Fed. Cl. 131 (2020). Counsel for Petitioner (who I again note has many years of Vaccine Program 

experience) is sufficiently versed in determining damages to read such cases and then offer an 

argument as to what formula should be used.

I remind Petitioner of my prior admonition that because of the case’s age, coupled with my 

estimation that calculation of damages should not prove a herculean task, I intend damages to be 

resolved in this calendar year. Counsel should make good use of the time provided to complete 

their assessments, and to resolve those damages components that are not in dispute. Future requests 

for extensions of time to act will be poorly received.

CONCLUSION

Petitioner’s First Motion is GRANTED IN PART. Petitioner may not at this time retain a 

life care planner, but she may retain a treater to assist her in calculating L.T.’s future care needs, 

and the expense of that assistance (assuming it is otherwise reasonable) will be reimbursed.

Petitioner’s Second Motion is DENIED.

Petitioner’s deadline to make demand on Respondent, and certify that she has done so, is 

now extended to April 30, 2021. The parties shall thereafter file joint status reports describing 
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their progress in resolving this matter on May 28, 2021, and June 30, 2021. I shall thereafter set 

a briefing schedule for determining damages if the parties have not resolved the matter themselves 

by the latter date.

IT IS SO ORDERED. 

/s/ Brian H. Corcoran

 Brian H. Corcoran

 Chief Special Master