Hood v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1774
Filed: March 23, 2020
* * * * * * * * * * * * *
ESTON HOOD, * UNPUBLISHED
*
Petitioner, * Decision Awarding Damages;
* Guillain-Barre Syndrome
v. * (“GBS”); Influenza (“Flu”)
* Vaccine
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Ronald Homer, Esq., Conway, Homer, P.C., Boston, MA, for petitioner.
Julia Collison, Esq., US Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Roth, Special Master:
On November 13, 2017, Eston Hood [“Mr. Hood” or “petitioner”] filed a petition for
compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that
he suffered Guillain-Barre Syndrome (“GBS”) after receiving an influenza (“flu”) vaccine on
October 31, 2014. See Petition, ECF No. 1.
Respondent thereafter filed a report pursuant to Vaccine Rule 4(c) conceding that
petitioner’s injury was caused-in-fact by the flu vaccination that he received on October 31, 2014,
and that petitioner is entitled to compensation in this case. Respondent’s Report at 1, ECF No. 26.
1
Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request 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). Otherwise, the whole Decision will be available to the public. 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).
On October 2, 2018, I issued a ruling on entitlement finding that petitioner was entitled to
compensation. See Ruling on Entitlement, ECF No. 27.
Respondent filed a proffer on March 23, 2020, agreeing to issue the following payments:
(1) A lump sum of $366,282.48, representing compensation for life care expenses
expected to be incurred during the first year after judgment ($24,425.49), lost
earnings ($191,856.99), and pain and suffering ($150,000.00), in the form of a
check payable to petitioner, Eston Hood; and
(2) An amount sufficient to purchase an annuity contract, described in section
II.B. of respondent’s proffer. This amount represents compensation for all damages
that would be available under § 300aa-15(a).
I adopt respondent’s proffer attached hereto, and award compensation in the amount and
on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance
with this decision.3
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
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
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
ESTON HOOD,
Petitioner, No. 17-1774V
Special Master Roth
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On November 13, 2017, Eston Hood (“petitioner”) filed a petition for compensation
under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34
(“Vaccine Act” or “Act”), as amended. Petitioner alleges that he suffered Guillain-Barré
syndrome (“GBS”) as a result of an influenza (“flu”) vaccine administered to him on October 31,
2014. On October 1, 2018, the Secretary of Health and Human Services (“respondent”) filed a
Rule 4(c) Report indicating that respondent does not contest entitlement in this matter, and the
Special Master issued a Ruling on Entitlement the following day finding that petitioner was
entitled to compensation.
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Laura E. Fox, MSN, BSN, RN, BSN, CLCP, and
petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of petitioner’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 October 1, 2018. 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 Eston Hood, attached hereto as Tab
A.1 Respondent proffers that petitioner should be awarded all 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, petitioner has suffered past loss
of earnings and will suffer a loss of earnings in the future. Therefore, respondent proffers that
petitioner should be awarded lost future earnings as provided under the Vaccine Act, 42 U.S.C. §
300aa-15(a)(3)(A). Respondent proffers that the appropriate award for petitioner’s lost earnings
is $191,856.99. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $150,000.00 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.
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
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through a combination of lump sum payments and future annuity payments as described below,
and request that the Special Master’s decision and the Court’s judgment award the following:2
A. A lump sum payment of $366,282.48, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($24,425.49), lost earnings
($191,856.99), and pain and suffering ($150,000.00), in the form of a check payable to
petitioner, Eston Hood.
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 company4 from
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.
3
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,
Eston Hood, only so long as petitioner 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 four percent (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
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. Life-contingent annuity
Petitioner will continue to receive the annuity payments from the Life Insurance
Company only so long as she, Eston Hood, 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 Eston Hood’s death.
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.
4
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 Sum paid to petitioner, Eston Hood: $366,282.48
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
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
s/ Julia M. Collison
JULIA M. COLLISON
Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 514-9729
Fax: (202) 305-0102
Dated: March 23, 2020
5
Appendix A: Items of Compensation for Eston Hood Page 1 of 1
Lump Sum
Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Years 4-8 Years 9-Life
2020 2021 2022 2023-2027 2028-Life
Medicare Part B Deductible 5% 198.00 198.00 198.00 198.00 198.00
Medicare Part D - Gabapentin 5% 120.00 120.00 120.00 120.00 120.00
Neurologist 5% *
Podiatrist 4% *
Gabapentin 5% *
Tylenol 4% 4.30 4.30 4.30 4.30 4.30
PT 4% *
OT 4% *
Cane (3) 4% 84.00 8.40 8.40 8.40 8.40
Walker 4% * 182.00
Transfer Shower Bench 4% 23.03 23.03 23.03 23.03 23.03
Hand Held Shower 4% 5.67 5.67 5.67 5.67 5.67
AFOs 4% *
Emergency Response System 4% 419.40 419.40 419.40 419.40 419.40
Home Care 4% M 5,760.00 5,760.00 5,760.00 5,760.00 5,760.00
Gym Membership 4% *
Mileage: Neurologist 4% 10.13 5.07 5.07 5.07 5.07
Mileage: Podiatrist 4% 25.98 25.98 25.98 25.98 25.98
Mileage: PT 4% 77.52 77.52 77.52 77.52 38.76
Mileage: OT 4% 6.46 3.23 3.23 3.23 3.23
Home Modifications 0% 17,509.00
Lost Earnings 191,856.99
Pain and Suffering 150,000.00
Annual Totals 366,282.48 6,650.60 6,650.60 6,650.60 6,611.84
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 ($24,425.49), lost earnings ($191,856.99), and pain and suffering ($150,000.00): $366,282.48.
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.