# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: September 10, 2018

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

TABITHA PRICE, as Mother and *

Natural Guardian of D.P., *

*

Petitioner, *

*

v. *

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

* * * * * * * * * * * * * UNPUBLISHED

Special Master Gowen

No. 11 -442 V

Proffer; DTaP; MMR ;

Prevnar; Anaphylactic

Reaction; Seizure

Disorder; Developmental

Delay.

Clifford John Shoemaker, Shoemaker and Associates, Vienna, VA, for petitioner.

Robert Paul Coleman, III, United States Department of Justice, Washington, DC, for respondent.

DECISION ON PROFFER 1



# On July 7, 2011, petitioner filed a petition for compensation under the National Vaccine

Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.

, 2 

# (the “Vaccine Act”) , as mother and

natural guardian of D.P. Petition (ECF No. 1). Petitioner alleged that as a result of receiving

Diphtheria-Tetanus-acellular- Pertussis (“DTaP”), Measles -Mumps- Rubella (“MMR”) and

Pneumococcal Conjugate (“Prevnar”) vaccines on August 4, 2008 , D.P. had a severe anaphylactic

reaction within two minutes of the vaccinations, which caused him to suffer a grand mal seizure.

Petitioner further alleged that several hours later D.P. experienced more seizures and subsequently

developed a seizure disorder and secondary developmental delay. Id.

On April 19, 201 2 , respondent filed his Rule 4(c) Report in which he contested entitlement

to compensation in this case. Respondent’s Report (ECF No. 24). An entitlement hearing was

1 

# Because this decision contains a reasoned explanation for the action in this case, the undersigned intends to post it

on the website of the United States Court of Federal Claims, pursuant to the E-Government Act of 2002, see 44

U.S.C. § 3501 note (2012). The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before

the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a

proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the

decision will be posted on the court’s website. Id.

2 

# National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of

citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

# 2



# held on September 19, 2014, and a ruling on entitlement was issued on October 29, 2015, finding

petitioner entitled to compensation. Ruling on Entitlement (ECF No. 91).

Counsel for the parties have worked extensively with their experts and have come to a

resolution of damages. Their respective life care planners have agreed on future care issues and

costs, lost future earnings, pain and suffering, past unreimbursable expenses, and the satisfaction

of a State of Georgia WellCare Medicaid lien. On September 7, 2018, respondent filed a proffer

on a ward of compensation (“Proffer”) indicating petitioner should be awarded: (1) a lump sum

payment of $ 1,250,898.64, representing compensation for lost earnings ($889,283.44), pain and

suffering ($250,000.00), and life care expenses for Year One ($111,615.20) ; (2) a lump sum

payment of $17,342.98 , representing compensation for satisfaction of the State of Georgia

WellCare Medicaid lien; and (3) an amount sufficient to purchase the annuity contract described

in the Proffer. Proffer at 3-4 (ECF No. 187).

Respondent represented in the Proffer that petitioner agrees with the proffered award. I

have reviewed the proffer and do award damages in accord with it. The Proffer is incorporated

herein and made a part hereof as Appendix A. Based on the record as a whole, I find that petitioner

is entitl ed to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer

, the undersigned awards

petitioner the following in compensation:

A. A lump sum payment of $1,250, 898.64 , representing compensation for lost earnings

($ 889,283.44 ), pain and suffering ($250,000.00), and life care expenses for Year One

($ 111,615.20 ), in the form of a check payable to petitioner as guardian/conservator of

D.P., for the benefit of D.P. No payments shall be made until petitioner provides

respondent with documentation establishing that she has been appointed as the

guardian/conservator of D.P. ’ s estate. If petition er is not authorized by a court of

competent jurisdiction to serve as guardian/conservator of the estate of D.P., any such

payment shall be made to the party or parties appointed by a court of competent

jurisdiction to serve as guardian(s)/conservator(s) of the estate of D.P. upon submission

of written documentation of such appointment to the Secretary. 3



# B. A lump sum payment of $17,342.98 , representing compensation for satisfaction of

the State of Georgia WellCare Medicaid lien, payable jointly to petitioner and

Equia n, LLC

P.O. Box 32140

Louisville, KY 40232-2140

Eq uian File No.: 744984 -116716

Attn: Stephen Snabb

Petitioner agrees to endorse this payment to Equian, LLC.

3 

# Petitioner is directed to act expeditiously to have an appropriate guardian appointed in Georgia so that payments

under the Proffer may be made.

# 3



# C. An amount sufficient to purchase an annuity contract as described in Section II. C of

the Proffer attached herein as Appendix A, that will provide payments for the life care

items contained in the life care plan, as illustrated by the chart attached as Tab A to the

Proffer, paid to the life insurance company from which the annuity will be purchased

.

The Clerk of the Court is directed to enter judgment in accordance with this Decision. 4



# IT IS SO ORDERED.

s/ Thomas L. Gowen

Thomas L. Gowen

Special Master

4 

# 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.

# - 1

- I N THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

__________________________________________ )

TABITHA PRICE, as Mother and Natural )

Guardian of D.P., )

)

Petitioner

, )

)

v. ) No. 11-442V

) Special Master Gowen

SECRETARY OF THE DEPARTMENT OF ) ECF

HEALTH AND HUMAN SERVICES, )

)

Respondent. )

__________________________________________)

RE SPONDENT'S PROFFER ON AWARD OF COMPENSATION

I. Items of Comp ensation

A. Life Care Items

T he respondent engaged life care planner , Laura E. Fox, MSN, RN, CDDN, CNLCP , and

petitioner engaged Tresa Johnson, RN, BSN, CNLCP, to provide an estimation of D.P. ’ s future

vaccine -injury related needs. For the purposes of this proffer, the term “vaccine related” is as

described in the Special Master’s Ruling on Entitlement

, filed October 29 , 2015

. All items of

compensation identified in the life care plan are supported by the evidence, and are illustrated by

the chart ent itled Appendix A: Items of Compensation for D.P. , attached hereto as Tab A. 1



# Respondent proffers that D.P. should be awarded all items of compensation set forth in the life

care plan and illustrated by the chart attached at Tab A. 2 

# Petitioner agree s.

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.

2 

# The parties have no objection to the proffered award of damages. Assuming the Special Master

issues a damages decision in conformity with this proffer, the parties intend to waive their right

# - 2

- B. Lost Future Earnings

T he parties agree that based upon the evidence of record, D.P. will not be gainfully

employed in the future. Therefore, respondent proffers that D.P. should be awarded lost future

earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B). Respondent

proffers that the appropriate award for D.P. 's lost earnings is $ 889,283.44

. Petitioner agree s.

C . Pain and Suffering

R espondent proffers that D.P. should be awarded $250,000.00 in actual pain and

suffering. See 42 U.S.C. § 300aa-15(a)( 4). Petitioner agree s.

D. Past Unreimbursable Expenses

P e titioner represents that she has not incurred past unreimbursable expenses related to

D.P.’ s vaccine -related injury.

E. Medicaid Lien

R espondent proffers that D.P. should be awarded funds to satisfy a State of Georgia

WellCare Medicaid lien in the amount of $17,342.98, which represents full satisfaction of any

right of subrogation, assignment, claim, lien, or cause of action the State of Georgia W ellCare

may have against any individual as a result of any Medicaid payments the State of Georgia

WellCare has made to or on behalf of D.P. from the date of h is eligibility for benefits through the

date of judgment in this case as a result of h is vaccine-related injury suffered on or about August

4, 2008, under Title XIX of the Social Security Act.

to seek review of such damages decision, recognizing that respondent reserves h is right, pursuant

to 42 U.S.C. § 300aa-12(f), to seek review of the Special Master’s October 29, 2015, decision

finding petiti oner entitled to an award under the Vaccine Act. This right accrues following entry

of judgment.

# - 3

- II. Form of the Award

T he parties recommend that the compensation provided to D.P. should be made through a

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

that the S pecial M aster’ s decision and the Court’s judgment award the following: 3



# A. A lump sum payment of $1,250,898.64 representing compensation for lost earnings

($ 889,283.44), pain and suffering ($250,000.00 ), and life care expenses for Year One

($ 111,615.20 ), in the form of a check payable to petitioner as guardian /conservator o f D.P. , for

the benefit of D.P. No payments shall be made until petitioner provides respondent with

documentation establishing that she ha s been appointed as the guardian/conservator of D.P. ’ s

estate . If petitioner is not authorized by a court of competent jurisdiction to serve as

guardian/conservator of the estate of D.P. , any such payment shall be made to the party or parties

appointed by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate

of D.P. upon submission of written documentation of such appointment to the Secretary.

B. A lump sum payment of $17,342.98 , represent ing compensation for satisfaction of the

State of Georgia WellCare Medicaid lien, payable jointly to petitioner and

Equian , LLC

P.O. Box 32140

Louisville, KY 40232-2140

Equian File No.: 744984-116716

Attn: Stephen Snabb

P etitioner agree s to endorse this payment to Equian , LLC

.

3 

# Should D.P. 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, lost future earnings, and future pain and suffering.

# - 4

- C. A n amount sufficient to purchase the annuity contract, 4 

# 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 company 5 

# from

which the annuity will be purchased. 6 

# Compensation for Year Two (beginning on the first

anniversary of the date of judgment) and all subsequent years shall be provided through

respo ndent’s purchase of an annuity, which annuity shall make payments directly to petitioner as

guardian of the estate of D.P. , only so long as D.P. 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 ins tallment.

4 

# In respondent’s discretion, respondent may purchase one or more annuity contracts from one

or more life insurance companies.

5 

# The Life Insurance Company m ust 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. D.P. Best Company: A++, A+, A+g, A+p, A+r, or A+s;

b. M oody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;

c. S tandard and Poor's Corporation Insurer Claims- Paying Ability Rating: AA

-, AA, AA+, or AAA;

d. F itch Credit Rating Company, Insurance Company Cla ims Paying Ability

Rating: AA

- , AA, AA+, or AAA.

# - 5

- 1. Gr owth Rate

R espondent 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 illustrat ed 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 med ical items. Petitioner agree s.

2. Li fe -Contingent Annuity

Petitioner will continue to receive the annuity payments from the Life Insurance

Company only so long as D.P. is alive at the time that a particular payment is due. Written

notice shall be pr ovided to the Secretary of Health and Human Services and the Life Insurance

Company within twenty (20) days of D.P. ’s death.

3. G uardianship

N o payments shall be made until petitioner provides respondent with documentation

establishing that she has been appointed as the guardian /conservator of D.P. ’ s estate. If

petitioner is not authorized by a court of competent jurisdiction to serve as guardian/conservator

of the estate of D.P. , any such payment shall be made to the party or parties appointed by a cou rt

of competent jurisdiction to serve as guardian (s)/conservator(s) of the estate of D.P. upon

submission of written documentation of such appointment to the Secretary.

6 

# 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.

# - 6

- III. Summary of Recommended Payments Following Judgment

A. Lump sum paid to petitioner as court -appointed

guardian/conservator of D.P. ’s estate : $1,250,898.64

B. M edicaid Lien: $ 17,342.98

C. An amount sufficient to purchase the annuity contract described

above in section II. C.

R espectfully submitted,

J OSEPH H. HUNT

Assistant Attorney General

C . SALVATORE D’ALESSIO

Acting Director

Torts Branch, Civil Division

C ATHARINE E. REEVES

Deputy Director

Torts Branch, Civil Division

GABRIELLE M. FIELDING

As sistant Director

Torts Branch, Civil Division

/

S/ Robert P. Coleman III

R OBERT P. COLEMAN III

Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Statio n

Washington, D.C. 20044-0146

Telephone: (202) 305-0274

D ated: September 7 , 2018AppendixA: Itemsof Compensationfor D.P.Page 1 of 6ITEMS OF COMPENSATION G.R. * MLump SumCompensationYear 1CompensationYear 2CompensationYear 3CompensationYears 4-6CompensationYears 7-8CompensationYears 9-10CompensationYear 11CompensationYear 1220182019 2020 2021-2023 2024-2025 2026-2027 2028 2029Medical Ins5% M 3,094.803,094.803,094.803,094.803,094.803,094.803,094.803,094.80Anthem MOP5%6,350.003,456.003,456.003,456.003,456.003,456.003,456.003,456.00Medicare Part B Premium5% MMedicare Part B Deductible5%Medigap G5% MMedicare Part D & Meds5% MPrimary Care5% *Mileage: PCP4%2.702.702.702.702.702.702.702.70Neurologist5% *280.00280.00280.00280.00280.00Mileage: Neurologist4%92.8892.8892.8892.8892.8892.8892.8892.88EEG5% *MRI5% *Vision Therapy4% *Vision Therapy Follow Up4% *Psychiatrist5% *Mileage: Psychiatrist4%11.3411.3411.3411.3411.3411.3411.3411.34Dentist5% *300.00300.00300.00300.00300.00300.00300.00300.00Mileage: Dentist4%5.765.765.765.765.765.765.765.76Night Guard4% *27.7027.7027.7027.7027.7027.7027.7027.70ER5% *Hospitalization5% *Orthopedic Surgeon for Scoliosis5% *PT Eval4% *400.00400.00400.00400.00200.00200.00200.00200.00Mileage: PT Eval4%5.765.765.765.762.882.882.882.88PT4% * M 12,000.0012,000.0012,000.0012,000.006,000.00Mileage: PT4%276.48276.48276.48276.48138.24138.24138.24138.24PT Eval for Home Exercise Prgm4% *OT Eval4% *200.00200.00200.00200.00200.00OT4% * M 6,000.006,000.006,000.006,000.006,000.00ST Eval4% *200.00200.00200.00200.00200.00ST4% * M 4,680.004,680.003,120.003,120.003,120.00AppendixA: Itemsof Compensationfor D.P.Page 2 of 6ITEMS OF COMPENSATION G.R. * MLump SumCompensationYear 1CompensationYear 2CompensationYear 3CompensationYears 4-6CompensationYears 7-8CompensationYears 9-10CompensationYear 11CompensationYear 1220182019 2020 2021-2023 2024-2025 2026-2027 2028 2029Mileage: ST, OT4% 207.36207.36207.36207.36138.24138.24138.24138.24Listening Therapy4%39.99Lamictal 150 mg5% *Lamictal 50 mg5% *Diazepam5% *Klonopin5% *Fiber Gummies4%36.4636.4636.4636.4636.4636.4636.4636.46Pediasure4%454.88454.88454.88454.88454.88454.88454.88Manual WC4% *Shower Chair4%64.4512.8912.8912.8912.8912.89Rifton Bike4% *Free Weights4%38.333.833.833.833.833.833.833.83Ankle Weights4%36.493.653.653.653.653.653.653.65Floor Mat4%279.00279.00Therabands4%36.6512.2212.2212.2212.2212.2212.2212.22Vestibular Swing4%943.64Lycra Swing4%90.00Glider4%118.95Scooter Board4%139.95139.95ADL Items4%350.00150.00150.00150.00150.00150.00150.0025.00Social Skills Group4%450.00225.00225.00225.00225.00225.00225.00Mileage: Social Skills Group4%241.92120.96120.96120.96120.96120.96120.96Summer Camp4%300.00300.00300.00300.00300.00300.00300.00Mileage: Summer Camp4%20.1620.1620.1620.1620.1620.1620.16Psychologist4% *Mileage: Psychologist4%28.8028.8028.80Case Mngt4% M 4,080.004,080.003,060.003,060.002,040.002,040.002,040.002,040.00Home Mods4%15,000.00Bruno Seat4%8,500.001,214.281,214.281,214.281,214.281,214.281,214.281,214.28Non Skilled Care School Days4% M 19,980.0019,980.0019,980.0019,980.0019,980.0019,980.0019,980.00Non Skilled Care Non School Days4% M 26,344.0026,344.0026,344.0026,344.0026,344.0026,344.0026,344.00AppendixA: Itemsof Compensationfor D.P.Page 3 of 6ITEMS OF COMPENSATION G.R. * MLump SumCompensationYear 1CompensationYear 2CompensationYear 3CompensationYears 4-6CompensationYears 7-8CompensationYears 9-10CompensationYear 11CompensationYear 1220182019 2020 2021-2023 2024-2025 2026-2027 2028 2029Adult Non Skilled Care4% M95,812.50Lost Future Earnings889,283.44Pain and Suffering250,000.00Medicaid Lien17,342.98Annual Totals1,268,241.6284,215.0281,699.4781,647.9174,188.8758,388.8758,807.82106,631.37Note: 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 the court-appointedguardian(s)/conservators(s) of the estate of D.P. for the benefit of D.P., for lost future earnings ($889,283.44),pain and suffering ($250,000.00), and Yr 1 life care expenses ($111,615.20): $1,250,898.64.As soon as practicable after entry of judgment, respondent shall make the following payment jointly topetitioner and Equian, LLC, as reimbursement of the Wellcare Medicaid lien: $17,342.98.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 in column "G.R." above, 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 12 monthly installments at the discretion of respondent.AppendixA: Itemsof Compensationfor D.P.Page 4 of 6ITEMS OF COMPENSATION G.R. * MMedical Ins5% MAnthem MOP5%Medicare Part B Premium5% MMedicare Part B Deductible5%Medigap G5% MMedicare Part D & Meds5% MPrimary Care5% *Mileage: PCP4%Neurologist5% *Mileage: Neurologist4%EEG5% *MRI5% *Vision Therapy4% *Vision Therapy Follow Up4% *Psychiatrist5% *Mileage: Psychiatrist4%Dentist5% *Mileage: Dentist4%Night Guard4% *ER5% *Hospitalization5% *Orthopedic Surgeon for Scoliosis5% *PT Eval4% *Mileage: PT Eval4%PT4% * MMileage: PT4%PT Eval for Home Exercise Prgm4% *OT Eval4% *OT4% * MST Eval4% *ST4% * MCompensationYears 13-15CompensationYears 16-20CompensationYear 21CompensationYears 22-Life2030-2032 2033-2037 2038 2039-Life3,094.803,094.803,456.003,456.001,608.001,608.00183.00183.001,548.001,548.00721.02721.022.702.702.702.7092.8892.8892.8892.8811.3411.3411.3411.34300.00300.00300.00300.005.765.765.765.7627.70138.50138.50138.50200.002.88AppendixA: Itemsof Compensationfor D.P.Page 5 of 6ITEMS OF COMPENSATION G.R. * MMileage: ST, OT4%Listening Therapy4%Lamictal 150 mg5% *Lamictal 50 mg5% *Diazepam5% *Klonopin5% *Fiber Gummies4%Pediasure4%Manual WC4% *Shower Chair4%Rifton Bike4% *Free Weights4%Ankle Weights4%Floor Mat4%Therabands4%Vestibular Swing4%Lycra Swing4%Glider4%Scooter Board4%ADL Items4%Social Skills Group4%Mileage: Social Skills Group4%Summer Camp4%Mileage: Summer Camp4%Psychologist4% *Mileage: Psychologist4%Case Mngt4% MHome Mods4%Bruno Seat4%Non Skilled Care School Days4% MNon Skilled Care Non School Days4% MCompensationYears 13-15CompensationYears 16-20CompensationYear 21CompensationYears 22-Life2030-2032 2033-2037 2038 2039-Life36.4636.4636.4636.4612.8912.8912.8912.893.833.833.833.833.653.653.653.6519.992.0012.2212.2212.2212.2225.0025.0025.0025.001,530.001,530.001,530.001,530.001,214.281,214.281,214.281,214.28AppendixA: Itemsof Compensationfor D.P.Page 6 of 6ITEMS OF COMPENSATION G.R. * MAdult Non Skilled Care4% MLost Future EarningsPain and SufferingMedicaid LienAnnual TotalsCompensationYears 13-15CompensationYears 16-20CompensationYear 21CompensationYears 22-Life2030-2032 2033-2037 2038 2039-Life95,812.5095,812.5095,812.5095,812.50105,844.89105,752.81103,282.02103,264.03Note: 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 the court-appointedguardian(s)/conservators(s) of the estate of D.P. for the benefit of D.P., for lost future earnings ($889,283.44),pain and suffering ($250,000.00), and Yr 1 life care expenses ($111,615.20): $1,250,898.64.As soon as practicable after entry of judgment, respondent shall make the following payment jointly topetitioner and Equian, LLC, as reimbursement of the Wellcare Medicaid lien: $17,342.98.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 in column "G.R." above, 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 12 monthly installments at the discretion of respondent.