# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS



### * * * * * * * * * * * * * * * * * * * * * * *

JANICE D. ADAMS, * No. 14

- 231 V

* Special Master Christian J. Moran

Petitioner, *

* Filed: December 9, 2016

v. *

*

SECRETARY OF HEALTH * Damages; Tetanus

- Diphtheria

AND HUMAN SERVICES, * Acellular Pertussis (“Tdap”)

* Shoulder injury related to vaccine

Respondent. * administration. (“SIRVA”).

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



### Elizabeth M. Muldowney , Rawls, McNelis and Mitchell, P.C., Richmond, VA, for

Petitioner;

Ann D. Martin , United States Department of Justice, Washington, DC, for

Respondent.

UNPUBLISHED DECISION AWARDING DAMAGES 1



### On March 26 , 2014

, Janice D. Adams (previously, Whitfield) filed a

petition seeking compensation under the National Vaccine Injury Compensation

Program, 42 U.S.C. §§ 300aa

- 1 et seq., alleging that the Tetanus

- Dephtheria

Acellular Pertussis vaccination caused h er to suffer a shoulder injury related to

vaccine administration (“SIRVA”)

. On February 23 , 201 5 , the undersigned ruled,

based upon respondent’s concession, see Respondent’s Report, filed February 19,

2015 , that petitioners are entitled t o compensation u nder the Vaccine Act.

On December 9, 2016 , respondent filed a Proffer on Award of

Compensation, to which petitioner agrees. Based upon the record as a whole, the

special master finds the proffer reasonable and that petitioner is entitled to an

1 T he E

- Government Act , 44 § 3501 note (2012) (Federal Management and Promotion of

Electronic Government Services), requires that the Court post this decision on its website.

Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of

medical information or other information described in 42 U.S.C. § 300aa

- 12(d)(4). Any

redactions o rdered by the special master will appear in the document posted on the website.

### award a s stated in the Proffer. Pursuant to the attached Proffer the court awards

petitioner:

1. A lump sum payment of $ 1,469,457.34, representing compensation for

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

judgment ($21,139.48), lost earnings ($1,221,078.00), pain and suffering

($221,591.39), and past unreimbursable expenses ($5,648.47), in the

form of a check pa yable to petitioner, Janice Adams . This amount

represents compensation for all damages that would be available under

42 U.S.C. §300aa

- 15(a), except as set forth below in paragraph 2 ; and

2. An am ount sufficient to purchase the annuity cont ract described in

paragraph II.B of the proffer attached hereto as “Appendix A,” paid to

the life insurance company from which the annuity will be purchased

(the “Life Insurance Company”). 2



### In the absence of a motion for review filed pursuant to RCFC, Appendix B,

the clerk is directed to enter judgment in case 14

- 231V according to this decision

and the attached proffer. 3



### Any questions may be directed to my law clerk, Dan Hoffman , at (202) 357

-

63 60

.

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

2 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 ha ve

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 A bility Rating: AA

- , AA, AA+,

or AAA;

d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA

- ,

e. AA, AA+, or AAA.

3 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing

a notice renouncing the right to seek review by a United States Court of Federal Claims judge.- 1

- IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________ )

JANICE D. ADAMS, )

)

Petitioner, )

) No. 14

- 231V

v. ) Special Master Moran

) ECF

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

Respondent. )

____________________________________)

RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

A. Life Care Items

Respondent eng aged life care planner Laura Fox , MS N

, BS N, RN, CNLCP, and

petitioner engaged Susan Riddick Graham

, RN, BA

, CCM

, to provide an estimation of Janice

Adams ’s future vaccine

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

related” i s as described in the Special Master’s Rul ing on Entitlement

, filed February 23 , 201 5

.

All items of compensation identified in the joint life care plan are supported by the evidence, and

are illustrated by the chart entitled Appendix A: Items of Compensat ion for Janice Adams

,

attached hereto as Tab A. 1 Respondent proffers that Janice Adams should be awarded all items

of compensation set forth in the joint 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 joint life care plan.

The annual benefit years run from the date of judgment up to the first anniversary of the date of

judgment, an d every year thereafter up to the anniversary of the date of judgment.- 2

- B. Lost Earnin gs

The parties agree that based upon the evidence of record, petitioner has suffered a past

loss of earnings and will suffer a loss of earnings in the future

. Therefore, respondent proffers

that Janice Adams should be awarded lost earnings as provided un der the Vaccine Act, 42 U.S.C.

§ 300aa

- 15(a)(3)(A). Respondent proffers that the appropriate award for Janice Adams ’s lost

earnings is $ 1,221,078.00 . Petitioner agrees.

C. Pain and Suffering

Respondent proffers that petitioner should be awarded $ 221, 591.39 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 h er expenditure of past unreimbursable

expenses related to h er vaccine

- related injury. Respondent proffers that petitioner should be

awarded past unreimbursable expenses in the amount of $ 5,648.47 . 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 petitioner should be made

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

and request that the Special M aster’s decision and the Court’ s judgment award the following: 2

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 futur e

medical expenses, future lost earnings, and future pain and suffering

.- 3

- A. A lump sum payment of $ 1,469,457.34 , representing compensation for l ife care

expenses expected to be incurred during the first year after judgment ($ 21,139.48 )

, lost earnings

($ 1,221,078.00 ), pain and suffering ($ 221,591.39 ), and past unreimbursable expenses

($5,648.47), in the form of a check payable to petitioner, Janice Adams

.

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 company 4 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 an nuity shall make payments directly to petitioner,

Janice Adams , only so long as she is alive at the time a particular pa yment 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

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

Rat ing: AA

- , AA, AA+, or AAA.

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 Rec ords, No. 09

- 15

- 0056.- 4

- 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 pe rcent ( 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

pay ments 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

- C ontingent A nnuity

Pet itioner will continue to receive the annuity payments from the Life Insurance

Company only so long as s he

, Janice Adams , 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 Janice Adams ’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 S um paid to petitioner, Janice Adams : $ 1,469,457.34

B

. An amount sufficient to purchase the annuity contract described

above in section II. B

.- 5

- Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

C. SALVATORE D’ALESSIO

Acting Director

Torts Branch, Civil Division

CATHARINE E. REEVES

Acting Deputy Director

Torts Branch, Civil Division

LINDA S. RENZI

Senior Trial Counsel

Torts Branch, Civil Division

s/ Ann D. Martin

ANN D. MARTIN

Senior Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, D.C. 20044

- 0146

T elephone: (202) 307

- 1815

Dated: December 9 , 2016

# TAB AAppendix A: Items of Compensation for Janice Adams Page 1 of 1

ITEMS OF COMPENSATION G.R. * M Lump Sum

Compensation

Year 1 Compensation

Years 2-6 Compensation

Years 7-24 Compensation

Years 25-Life

2016 2017-2021 2022-2039 2040-Life

Medicare Part B Premium 5% M 1,461.60 1,461.60 1,461.60

Medicare Part B Deductible 5% 166.00

Medigap G 5% M 1,233.36

Medicare Part D 5% M 2,892.60

Psych Counseling 4% * 960.00 480.00

Crisis Counseling 4% 80.00

Psychiatric Treatment in Day Program 0% 4,550.00

Acetaminophen 5% * M 168.00 168.00 168.00

Bupropion 5% * M 75.72 75.72 75.72

Duloxetine 5% * M 564.00 564.00 564.00

Rid-a-pain Cream 4% M 455.76 455.76 455.76 455.76

Tizanidine 5% * M 168.00 168.00 168.00

Lyrica 5% * M 564.00 564.00 564.00

TENS 4% *

Electrodes 4% * 496.40 496.40 496.40 496.40

Supplies for Independence 4% 200.00 40.00 40.00 40.00

Homemaker 4% M 10,920.00 10,920.00 10,920.00 10,920.00

Cervical Spine Injections 5% * 120.00 120.00 120.00

Drug Screening 5% * 76.00 76.00 76.00

Psychiatrist 5% * 360.00 360.00 360.00

Lost Future Earnings 1,221,078.00

Pain and Suffering 221,591.39

Past Unreimbursable Expenses 5,648.47

Annual Totals 1,469,457.34 15,949.48 15,549.48 16,204.12

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 ($21,139.48), lost earnings ($1,221,078.00), pain and suffering ($221,591.39), and past unreimbursable

expenses ($5,648.47): $1,469,457.34.

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.