1



# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Case No. 1 4

- 68 V

Filed: April 2 7 , 201 5

(Not to be published)

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

J ODY RADIS

, *

*

Petitioner, * Decision on Damages ; Influenza

v. * Vaccine; R otator Cuff Ten d inosis

.

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Ronald C. Homer

, Conway, Homer & Chin

- Caplan, P.C.

, Boston, MA for petitioner.

J ustine E.Walters

, U nited S tates Department of Justice, Washington, DC for respondent.

DECISION ON DAMAGES 1



### Gowen , Special Master:

On J anuary 27, 2014

, J ody Radis (“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” or “Program”] alleging that as a result of receiving an influe nza (“flu”)

vaccine on October 26 , 2011 , she suffered f rom rotator c uff tendinosis in her left shoulder

.

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I

intend to post this ruling on the United States Court of Federal Claims' website, in accordance with

the E

- Government Act of 2002, Pub. L. No. 107

- 347, § 205, 1 16 Stat. 2899, 2913 (codified as

amended at 44 U.S.C. § 3501 note (2006)) . In accordance with Vaccine Rule 18(b), petitioner has

14 days to identify and move to delete 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 delete 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of

42 U.S.C. § 300aa (2006).2



### Petition at Intro . On A pril 2 8 , 2014, respondent filed a Rule 4(c) Report [“Respondent’s

Report”] in which she conceded that petitioner is entitled to compensation

. Resp’ t Rep

. at

1

- 2

. T he undersigne d issued a Ruling on Entitlement on A pril 29, 2014

, finding petitioner

is entitled to compensation based on an injury caused

- in

- fact by a covered vaccine

.

On April 24 , 2015 , respondent filed a P roffer on an award of compensation,

indicating that petitioner has agreed to compensation in the amount of $ 1 62,339.85 , to be

paid to petitioner only, for life care expenses expected to be incurred during the first year

after judgment, lost earnings

, pain and sufferin g, and past unreimburseable expenses.

Petitioner w ill also receive an amount sufficient to purchase an annuity c ontract described

in section II( B ) of the Proffer , attached hereto as Appendix A . P etitioner’s counsel was

contacted by the undersigned’s chamb ers on April 27 , 2015 and he confirmed petitioner’s

agreement with the proposed compensation amount s

. Accordingly, p ursuant to the terms

in the attached Proffer, the undersigned award s petitioner the following compensation

for all damages that would be available under 42 U.S.C. § 300aa

- 15(a) :

1. A lump sum payment of $ 1 62,339.85 in the form of a check payable to

petitioner, J ody Radis ; and

2. An amount sufficient to purchase an annuity contract to provide the

benefits described in section II, paragraph B of the P roffer , to be paid to a

life insurance company meeting the criteria described in footnote 4

.

The clerk of the court is directed to enter judgment in accordance with this

decision. 3



### IT IS SO ORDERED.

s/Thomas L. Gowen

Thomas L. Gowen

Special Master

3 Pursuant to Vaccine Rule 11( a), entry of judgment can be expedited by each party filing a notice

renouncing the right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________ )

JODY RADIS

, )

)

Petitioner, ) No. 14-68V

) Special Master Gow en

v. ) ECF

)

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

Respondent. )

)

RE SPONDENT'S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

A. Life Care Items

R espondent engaged life care planner Linda Curtis

, RN, MS N, CCM

, CNCLP, and

petitioner eng aged Maureen Clancy

, RN, BSN , CLCP, to provide an estimation of Jody Radis ’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 filed on April 28, 2014 , conced ing entitlement in

this case

. All items of compensation identified in the agreed upon life care plan are supported by

the evidence, and are illustrated by the chart entitled Appendix A: Items of Compensation for Jody

Radis, attached hereto as Tab A. 1 Res pondent proffers that Jody Radis should be awarded all

items of compensation set forth in the agreed upon life care plan and illustrated by the chart

attached at Tab A. Petitioner agrees.

1 The chart at Tab A illu strates the annual benefits provided by the agreed upon 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.B. Lo st Earnings

T he parties agree that based upon the evidence o f record, Jody Radis has suffered a past

loss of earnings and will continue to suffer a loss of earnings in the future. Therefore, respondent

proffers that Jody Radis 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 Jody Radis ’s

lost earnings is $ 53,903.81 . Petitioner agrees.

C. P ain and Suffering

R espondent proffers that Jody Radis should be awarded $100,000.00 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

E vidence supplied by petitioner documents Jody Radis ’s expe nditure 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 $2,667.17 . Petitioner agrees.

E. M edicaid Lien

P eti tioner represents that there are no Medicaid liens outstanding against her.

II. Form of the Award

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

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

and request that the Special Master’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 future medical

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

-2-A. A lump sum payment of $162,339.85 , representing compensation for life care

expenses expected to be incurred during the first year after judg ment ($ 5,768.87 ), lost earnings

($ 53,903.81 ), pain and suffering ($ 100,000.00), and past unreimbursable expenses ($2,667.17), in

the form of a check payable to petitioner, Jody Radis.

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 annuity shall make payments directly to petitioner,

Jody Radis, only so long as Jod y Radis is alive at the time a particular pa yment is due. At the

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 valuatio n 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. M oody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aa a;

c. S tandard 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.

5 Petitioner authorizes the disclosure of certai n 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.

-3-S ecretary’ 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. 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 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. Li fe -contingent annuity

P etitioner will continue to receive the annuity payments from the Life Insuranc e Company

only so long as she, Jody Radis , 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 Jody Radis’s death.

3. G uardianship

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

III. Summary of Recommended Payments Following Judgment

A. L ump Sum paid to petitioner, Jody Radis: $ 162,339.85

B. An amount sufficient to p urchase the annuity contract described

above in section II. B.

-4

-R espectfully submitted,

B ENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

R UPA BHATTACHARYYA

Director

Torts Branch, Civil Division

V INCENT J. MATANOSKI

Deputy Director

Torts Branch, Civil Division

HE ATHER L. PEARLMAN

Senior Trial Attorney

Torts Branch, Civil Division

s/ Justine Walters

J USTINE WALTERS

Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, D.C. 20044-0146

Telephone: (202) 307-6393

D ated: April 2 4, 2015

-5-

# TAB AAppendix A: Items of Compensation for Jody RadisPage 1 of 4ITEMS OF COMPENSATION G.R MLump SumCompensationYear 1CompensationYear 2CompensationYears 3-5CompensationYear 6CompensationYear 7CompensationYear 8CompensationYear 9CompensationYear 102015 2016 2017-2019 2020 2021 2022 2023 2024Primary Care5%80.0080.0080.0080.0080.0080.0080.0080.00Orthopedist5%250.00250.00Pain Specialist5%325.00250.00175.00175.00175.00175.00175.00175.00X-ray of Shoulder5%106.00Tylenol Extra Strength4%116.65116.65116.65116.65116.65116.65116.65116.65Tylenol PM4%72.9372.9372.9372.9372.9372.9372.9372.93PT4%983.86983.86OT Eval0%235.14Psychologist4%360.00360.00Shower Bench4%139.87139.87Hand Held Shower4%33.3133.31Grab Bars0%209.79Rubber Bath Mat4%14.9914.9914.9914.9914.9914.9914.9914.99Adaptive Equip4%200.00100.00100.00Heating Pad4%59.5059.50Folding Step Stool4%59.99TENS4%51.9926.0026.0026.0026.0026.0026.0026.00TENS Batteries & Electrodes4%19.2819.2819.2819.2819.2819.2819.2819.28Home Care4% M 2,028.002,028.002,028.002,028.002,028.002,028.002,028.004,056.00Mileage: PCP4%4.594.594.594.594.594.594.594.59Mileage: Orthopedist4%21.3021.30Mileage: Pain Specialist4%68.6445.7622.8822.8822.8822.8822.8822.88Mileage: PT4%26.5626.56Mileage: OT0%4.43Mileage: Counselor4%3.503.50Mileage: Drivers Eval0%20.60Drivers Eval0%250.00Car Mods4%22.9522.95Lost Future Earnings53,903.81Pain and Suffering100,000.00Past Unreimbursable Expenses2,667.17Appendix A: Items of Compensation for Jody RadisPage 2 of 4ITEMS OF COMPENSATION G.R MLump SumCompensationYear 1CompensationYear 2CompensationYears 3-5CompensationYear 6CompensationYear 7CompensationYear 8CompensationYear 9CompensationYear 102015 2016 2017-2019 2020 2021 2022 2023 2024Annual Totals162,339.852,758.202,560.324,287.992,660.322,733.502,560.324,588.32Note: 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 careexpenses ($5,768.87), lost earnings ($53,903.81), pain and suffering ($100,000.00), and past unreimbursableexpenses ($2,667.17): $162,339.85.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 "M" payable in twelve monthly installments totaling the annual amount indicated.Appendix A: Items of Compensation for Jody RadisPage 3 of 4ITEMS OF COMPENSATION G.R MPrimary Care5%Orthopedist5%Pain Specialist5%X-ray of Shoulder5%Tylenol Extra Strength4%Tylenol PM4%PT4%OT Eval0%Psychologist4%Shower Bench4%Hand Held Shower4%Grab Bars0%Rubber Bath Mat4%Adaptive Equip4%Heating Pad4%Folding Step Stool4%TENS4%TENS Batteries & Electrodes4%Home Care4% MMileage: PCP4%Mileage: Orthopedist4%Mileage: Pain Specialist4%Mileage: PT4%Mileage: OT0%Mileage: Counselor4%Mileage: Drivers Eval0%Drivers Eval0%Car Mods4%Lost Future EarningsPain and SufferingPast Unreimbursable ExpensesCompensationYear 11CompensationYear 12CompensationYears 13-14CompensationYear 15CompensationYears 16-Life2025 2026 2027-2028 2029 2030-Life80.0080.0080.0080.0080.00250.0050.0050.0050.0050.00175.00175.00175.00175.00175.00106.0010.6010.6010.6010.60116.65116.65116.65116.65116.6572.9372.9372.9372.9372.93983.86196.77196.77196.77196.77139.8719.9833.314.7614.9914.9914.9914.9914.99100.0059.5011.9011.9011.9011.9059.996.006.006.006.0026.0026.0026.0026.0026.0019.2819.2819.2819.2819.284,056.004,056.004,056.004,056.004,056.004.594.594.594.594.5921.304.264.264.264.2622.8822.8822.8822.8822.8826.565.315.315.315.3122.954.594.594.594.59Appendix A: Items of Compensation for Jody RadisPage 4 of 4ITEMS OF COMPENSATION G.R MAnnual TotalsCompensationYear 11CompensationYear 12CompensationYears 13-14CompensationYear 15CompensationYears 16-Life2025 2026 2027-2028 2029 2030-Life6,118.484,977.754,877.755,050.934,902.49Note: 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 careexpenses ($5,768.87), lost earnings ($53,903.81), pain and suffering ($100,000.00), and past unreimbursableexpenses ($2,667.17): $162,339.85.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 "M" payable in twelve monthly installments totaling the annual amount indicated.