Mayo v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1502V
UNPUBLISHED
DARRELL G. MAYO, Chief Special Master Corcoran
Petitioner, Filed: November 21, 2019
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
Respondent.
Jesse James Johnson, Jr., Johnson Gardy & Teumer, Suffolk, VA, for petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On November 14, 2016, Darrell Mayo filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that he suffered from Guillain-Barre Syndrome
(“GBS”) following the administration of an influenza (“flu”) vaccine on October 1, 2014.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On October 30, 2018, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for GBS. On November 21, 2019, Respondent filed a proffer
on award of compensation (“Proffer”) indicating Petitioner should be awarded a lump
sum payment of $760,123.27, representing compensation for life care expenses
expected to be incurred during the first year after judgement ($18,849.19), lost earnings
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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 E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the ruling will be available 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 which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2National 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).
($559,252.00), pain and suffering ($175,000.00), and unreimbursable expenses
($7,022.08). Proffer at 2-3. The Proffer also indicates that Petitioner should be
awarded an amount sufficient to purchase an annuity contract as set forth in Section
II.B. Proffer at 3. In the Proffer, Respondent represented 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, the undersigned awards
petitioner:
• A lump sum of $760.123.27 representing compensation for life care
expenses expected to be incurred during the first year after
judgement ($18,849.19), lost earnings ($559,252.00), pain and
suffering ($175,000.00), and past unreimbursable expenses
($7,022.08) in the form of a check payable to petitioner, Darrell G.
Mayo; and
• An amount sufficient to purchase the annuity contract described in
the Proffer at Section II.B.
This amount represents compensation for all damages that would be available under §
300aa-15(a).
The clerk of the 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 can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
DARRELL G. MAYO, )
)
Petitioner, )
v. ) No. 16-1502V
) Chief Special Master Corcoran
SECRETARY OF HEALTH AND HUMAN ) ECF
SERVICES, )
)
Respondent. )
)
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
On October 29, 2018, respondent filed a Rule 4(c) Report conceding that entitlement to
compensation was appropriate under the terms of the Vaccine Act. On October 30, 2018, the
court issued a Ruling on Entitlement, finding that petitioner was entitled to vaccine
compensation for his Guillain-Barré syndrome. Respondent now proffers the following
regarding the amount of compensation to be awarded.
I. Items of Compensation
A. Life Care Items
The parties engaged life care planner Linda Curtis, RN, MS, CCM, CNLCP, to provide
an estimation of Darrell G. Mayo’s future vaccine-injury related needs. For the purposes of this
proffer, the term “vaccine related” is as described in the respondent’s Rule 4(c) Report. All
items of compensation identified in the life care plan are supported by the evidence, and are
illustrated by the chart entitled Appendix A: Items of Compensation for Darrell G. Mayo,
attached hereto as Tab A. 1 Respondent proffers that Darrell G. Mayo should be awarded all
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.
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items of compensation set forth in the life care plan and illustrated by the chart attached at Tab
A. Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, Darrell G. Mayo has suffered
past loss of earnings and will suffer a loss of earnings in the future. Therefore, respondent
proffers that Darrell G. Mayo 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 Darrell
G. Mayo’s lost earnings is $559,252.00. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that Darrell G. Mayo should be awarded $175,000.00 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
Evidence supplied by petitioner documents his expenditure of past unreimbursable
expenses related to his vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $7,022.08. Petitioner agrees.
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through a combination of a lump sum payment and future annuity payments as described below,
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and request that the Chief Special Master’s decision and the Court’s judgment award the
following: 2
A. A lump sum payment of $760,123.27, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($18,849.19), lost earnings
($559,252.00), pain and suffering ($175,000.00), and past unreimbursable expenses ($7,022.08),
in the form of a check payable to petitioner, Darrell G. Mayo.
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
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 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
Rating: 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 Records, No. 09-15-0056.
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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,
Darrell G. Mayo, only so long as Darrell G. Mayo 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 installment.
1. Growth Rate
Respondent proffers that a three percent (3%) 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: three percent (3%) 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-contingent annuity
Petitioner will continue to receive the annuity payments from the Life Insurance
Company only so long as he, Darrell G. Mayo, 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 Darrell G. Mayo’s death.
3. Guardianship
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
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III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to petitioner, Darrell G. Mayo: $760,123.27
B. An amount sufficient to purchase the annuity contract described
above in section II.B.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
/s/Traci R. Patton
TRACI R. PATTON
Senior Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 353-1589
Dated: November 21, 2019
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Appendix A: Items of Compensation for Darell G. Mayo Page 1 of 2
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-3 Year 4 Years 5-6 Year 7 Years 8-9 Years 10-16 Years 17-Life
2019 2020-2021 2022 2023-2024 2025 2026-2027 2028-2034 2035-Life
Insurance Premium 5% M 1,806.00
Insurance MOP 5% 3,000.00
Medigap F 5% M 1,749.12 1,749.12 1,749.12 1,749.12 1,749.12 1,749.12 1,749.12
Medicare Part D 5% M 1,866.36 1,866.36 1,866.36 1,866.36 1,866.36 1,866.36 1,866.36
PCP 5% *
Neurologist 5% *
Physiatry 5% *
Ophthalmologist 5% *
EMG 5% *
MRI 5% *
Lab Testing 5% *
Gym 3% 480.00 480.00 480.00 480.00 480.00
Massage Therapy 3% 960.00 960.00 960.00
Reacher 3% 25.15 5.03 5.03 5.03 5.03 5.03 5.03 5.03
Raised Toilet Seat 3% 68.54 13.71 13.71 13.71 13.71 13.71 13.71 13.71
Cane 3% 30.21 6.04 6.04 6.04 6.04 6.04 6.04 6.04
Walker 3% 74.98 15.00 15.00 15.00 15.00 15.00 15.00 15.00
Scooter 3% 1,929.00 275.57 275.57 275.57 275.57 275.57 275.57 275.57
Scooter Batteries 3% 47.14 47.14 47.14 47.14 47.14 47.14 47.14 47.14
Scooter Maint 3% 156.77 156.77 156.77 156.77 156.77 156.77 156.77 156.77
Scooter Lift 3% 1,899.00 189.90 189.90 189.90 189.90 189.90 189.90 189.90
Lift Chair 3% * 499.00 24.90 24.90 24.90 24.90 24.90 24.90 24.90
Lifeline 3% 359.40 359.40 359.40 359.40 359.40 359.40 359.40 359.40
Xarelto 5% *
Cymbalta 5% *
Cyclo-benzaprine 5% *
Home Health Care 3% M 3,120.00 3,120.00 3,120.00 3,120.00 6,240.00 6,240.00 6,240.00 9,360.00
Lawn Mowing 3% 1,820.00 1,820.00 1,820.00 1,820.00 1,820.00 1,820.00
Home Mods 0% 2,574.00
Lost Earnings 559,252.00
Pain and Suffering 175,000.00
Appendix A: Items of Compensation for Darell G. Mayo Page 2 of 2
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-3 Year 4 Years 5-6 Year 7 Years 8-9 Years 10-16 Years 17-Life
2019 2020-2021 2022 2023-2024 2025 2026-2027 2028-2034 2035-Life
Past Unreimbursable Expenses 7,022.08
Annual Totals 760,123.27 10,128.94 11,088.94 10,128.94 14,208.94 12,768.94 10,948.94 14,068.94
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 ($18,849.19), lost earnings ($559,252.00), pain and suffering ($175,000.00), and past unreimbursable
expenses ($7,022.08): $760,123.27.
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.