Faucher v. Secretary of Health and Human Services ( 2015 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-34V
Filed: September 24, 2015
Unpublished
****************************
RACHEL FAUCHER, *
*
Petitioner, * Damages Decision Based on Proffer;
v. * Influenza or Flu Vaccine; Shoulder
* Injury Related to Vaccine Administration
SECRETARY OF HEALTH * (“SIRVA”); Special Processing Unit
AND HUMAN SERVICES, * (“SPU”)
*
Respondent. *
*
****************************
Ronald Homer, Esq., Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner.
Claudia Gangi, Esq., U.S. Department of Justice, Washington, DC for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On January 12, 2015, Rachel Faucher 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”]. Petitioner alleges that she suffered a shoulder injury
related to vaccine administration (SIRVA) which was caused by the influenza vaccine
she received on September 11, 2013. Petition at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
On May 12, 2015, a ruling on entitlement finding petitioner entitled to
compensation for her shoulder injury related to vaccine administration [“SIRVA”] was
issued. On September 24, 2015, respondent filed a proffer on award of compensation
[“Proffer”] indicating petitioner should be awarded a lump sum payment of $394,670.96
and payment to purchase an annuity contract (or contracts) to provide yearly amounts
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post it on the United States Court of Federal Claims' website, in accordance with the E-Government
Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501note (2006)). 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 (2006).
for items of care as illustrated in Tab A (filed as an attachment to the Proffer) directly to
petitioner as long as she lives. Proffer at 3-4.
Pursuant to the terms stated in the attached Proffer, I award petitioner payment
as follows:
1. A lump sum payment of $394,670.96 in the form of a check payable
solely to petitioner, Rachel Faucher;
2. A payment sufficient to purchase the annuity contract described in
section II.B. of the Proffer.
These amounts represent 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
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief 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.
2
Case 1:15-vv-00034-UNJ Document 23 Filed 09/24/15 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF THE SPECIAL MASTERS
___________________________________
)
RACHEL FAUCHER, )
)
Petitioner, )
) No. 15-34V
v. ) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES )
)
Respondent, )
___________________________________ )
RESPONDENT'S PROFFER ON DAMAGES
Respondent submits the following recommendations regarding items of compensation to
be awarded to petitioner under the Vaccine Act.
I. Items of Compensation
A. Respondent proffers Rachel Faucher (“petitioner”) should be awarded all items of
compensation included in this Proffer and those illustrated by the chart attached as Tab A.
Specifically, respondent proffers:
1. Health Insurance, Medicare, and Medigap
For future unreimbursable health insurance, Medicare Part B, and Medigap Plan C,
beginning on the first anniversary of the date of judgment, an annual amount of $4,315.08 to be
paid up to the anniversary of the date of judgment in year 2024, then beginning on the
anniversary of the date of judgment in year 2024, an annual amount of $2,293.20 to be paid for
the remainder of petitioner’s life, all amounts increasing at the rate of five percent (5.0%),
compounded annually from the date of judgment. Petitioner agrees.
Case 1:15-vv-00034-UNJ Document 23 Filed 09/24/15 Page 2 of 5
2. Home Services
For future unreimbursable home services, beginning on the first anniversary of the date of
judgment, an annual amount of $979.00 to be paid for the remainder of petitioner’s life, all
amounts increasing at the rate of four percent (4.0%), compounded annually from the date of
judgment. Petitioner agrees.
B. Home Modifications
Respondent proffers that petitioner should be awarded a one-time lump sum payment of
$1,995.00 for future home modifications. Petitioner agrees.
C. Lost Earnings
The parties agree that based upon the evidence of record, Rachel Faucher has suffered a
past loss of earnings and will suffer future lost earnings as a result of her vaccine-related injury.
Therefore, respondent proffers that petitioner should be awarded a lump sum of $235,419.29 for
all lost earnings, past and future, as provided under the Vaccine Act, 42 U.S.C. § 300aa-
15(a)(3)(A). Petitioner agrees.
D. Pain and Suffering
Respondent proffers that petitioner should be awarded $145,000.00 in actual and
projected pain and suffering. This amount reflects that the award for projected pain and
suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner
agrees.
E. Past Unreimbursed Expenses
Evidence supplied by petitioner documents her expenditure of past un-reimbursable
expenses related to her vaccine-related injury. Respondent proffers that the petitioner is entitled
to past un-reimbursed expenses in the amount of $2,771.67. Petitioner agrees.
2
Case 1:15-vv-00034-UNJ Document 23 Filed 09/24/15 Page 3 of 5
F. Medicaid Lien
Petitioner represents that there are no outstanding Medicaid liens related to her vaccine-
related injury.
II. Form of the Award
The parties recommend that the compensation provided to petitioner for her future
medical care needs should be made through a combination of a one-time lump sum payment and
future annuity payments as described below, and request that the Chief Special Master’s decision
and the Court’s judgment reflect the following items of compensation. 1
Respondent proffers and petitioner agrees that an award of compensation include the
following elements:
A. A lump sum payment of $394,670.96, representing health insurance, home services,
and home modification expenses for Year One ($11,480.00), compensation for lost earnings
($235,419.29), past un-reimbursed expenses ($2,771.67), and pain and suffering ($145,000.00),
in the form of a check payable to petitioner.
B. An amount sufficient to purchase an annuity contract, 2 subject to the conditions
described below, that will provide payments for the items of care illustrated by the chart at Tab
A, attached hereto, and paid to the life insurance company3 from which the annuity will be
1
Should petitioner die prior to entry of judgment, respondent would oppose any award for
future medical expenses and future pain and suffering, and the parties reserve the right to move
the Court for appropriate relief.
2
In respondent’s discretion, respondent may purchase one or more annuity contracts from one
or more life insurance companies.
3
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;
3
Case 1:15-vv-00034-UNJ Document 23 Filed 09/24/15 Page 4 of 5
purchased. 4 Compensation for Year Two (beginning on the first anniversary of the date of
judgment) and all subsequent payments shall be provided through respondent’s purchase of an
annuity, which annuity will make payments directly to the petitioner only so long as she is alive
at the time a particular payment is due. The “annual amounts” set forth in 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 Rates
Respondent proffers that a four percent (4.0%) growth rate should be applied to all non-
medical items, and a five percent (5.0%) growth rate should be applied to all medical items. The
benefits illustrated in the chart at Tab A that are to be paid through annuity payments should
grow as follows: four percent (4.0%) for all non-medical items, and five percent (5.0%) for all
medical items, compounded annually from the date of judgment. Petitioner agrees.
2. Life-contingent Annuity
Petitioner will continue to receive the annuity payments for future medical care from the
Life Insurance Company only so long as she is alive at the time that a particular payment is due.
Written notice to the Secretary of Health and Human Services and the Life Insurance Company
shall be made within twenty (20) days of petitioner’s death.
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.
4
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.
4
Case 1:15-vv-00034-UNJ Document 23 Filed 09/24/15 Page 5 of 5
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to Petitioner: $394,670.96
B. An amount sufficient to purchase the annuity contract described above in
section II. B.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
ALTHEA W. DAVIS
Senior Trial Counsel
Torts Branch, Civil Division
/s/ Claudia B. Gangi
CLAUDIA B. GANGI
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel.: (202) 616-4138
Dated: September 23, 2015
5
Case 1:15-vv-00034-UNJ Document 23-1 Filed 09/24/15 Page 1 of 1 TAB A
Pet. Rachel Faucher
D.O.B. 09/16/1959
DATE: 08/21/15
TIME: 11:52 AM
SUMMARY OF LIFE CARE ITEMS - Per PETITIONER'S DEMAND dated May 18, 2015 and July 2, 2015 as modified August 21, 2015
ITEM OF CARE Insurance Home Services Home TOTALS TOTALS TOTALS OF
Modifications of Items of Items 5.0% & 4.0% ITEMS
with a 5.0% with a 4.0% & APPLYING
Growth Rate Growth Rate THE GROWTH
GROWTH RATE 5.0% 4.0% 4.0% RATE
AGE YEAR
56 2015 8,505.60 979.00 1,995.00 8,506 2,974 11,480
57 2016 4,315.08 979.00 0.00 4,315 979 5,549
58 2017 4,315.08 979.00 0.00 4,315 979 5,816
59 2018 4,315.08 979.00 0.00 4,315 979 6,096
60 2019 4,315.08 979.00 0.00 4,315 979 6,390
61 2020 4,315.08 979.00 0.00 4,315 979 6,698
62 2021 4,315.08 979.00 0.00 4,315 979 7,021
63 2022 4,315.08 979.00 0.00 4,315 979 7,360
64 2023 4,315.08 979.00 0.00 4,315 979 7,715
65 2024 2,293.20 979.00 0.00 2,293 979 4,951
66 2025 2,293.20 979.00 0.00 2,293 979 5,185
67 2026 2,293.20 979.00 0.00 2,293 979 5,429
68 2027 2,293.20 979.00 0.00 2,293 979 5,686
69 2028 2,293.20 979.00 0.00 2,293 979 5,954
70 2029 2,293.20 979.00 0.00 2,293 979 6,236
71 2030 2,293.20 979.00 0.00 2,293 979 6,531
72 2031 2,293.20 979.00 0.00 2,293 979 6,839
73 2032 2,293.20 979.00 0.00 2,293 979 7,163
74 2033 2,293.20 979.00 0.00 2,293 979 7,502
75 2034 2,293.20 979.00 0.00 2,293 979 7,857
76 2035 2,293.20 979.00 0.00 2,293 979 8,230
77 2036 2,293.20 979.00 0.00 2,293 979 8,620
78 2037 2,293.20 979.00 0.00 2,293 979 9,028
79 2038 2,293.20 979.00 0.00 2,293 979 9,457
80 2039 2,293.20 979.00 0.00 2,293 979 9,905
81 2040 2,293.20 979.00 0.00 2,293 979 10,375
82 2041 2,293.20 979.00 0.00 2,293 979 10,868
83 2042 2,293.20 979.00 0.00 2,293 979 11,384
86,597 27,412 1,995 86,597 29,407 211,327
74.65% 23.63% 1.72% 100.00%
This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990
Faucher Life Care Plan and Wage Loss REV2 08 21 15
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