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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1077V
UNPUBLISHED
DAVID LANS STOUT, Chief Special Master Corcoran
Petitioner, Filed: November 19, 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.
Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION AWARDING DAMAGES1
On August 8, 2017, David Lans Stout 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 Guillain-Barre Syndrome (“GBS”) as
the result of an influenza (“flu”) vaccination he received on September 7, 2016. Petition
at 1. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
On May 2, 2018, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for his GBS. On November 14, 2019, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $171,976.44,
representing compensation for life care expenses expected to be incurred during the
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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).
first year after judgment ($11,976.44), and pain and suffering ($160,000.00), and an
amount sufficient to purchase an annuity contract as described in Proffer Section II.B.
Proffer at 2-3. 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
the following:
A. A lump sum payment of $171,976.44, representing compensation for life
care expenses expected to be incurred during the first year after
judgment ($11,976.44), and pain and suffering ($160,000.00), in the form
of a check payable to petitioner, David Lans Stout.
B. An amount sufficient to purchase the annuity contract described in the
Proffer Section II.B.
This amount stated in Section II of the attached proffer represents all elements of
compensation to which Petitioner would be entitled under 42 U.S.C. § 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
DAVID LANS STOUT,
Petitioner,
v. No. 17-1077V
Chief Special Master Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLCP, and
petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of David Lans
Stout’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, filed May 25, 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 David Lans Stout, attached hereto as
Tab A. 1 Respondent proffers that David Lans Stout 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.
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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B. Lost Earnings
The parties agree that based upon the evidence of record, David Lans Stout has not
suffered past loss of earnings and will not suffer a loss of earnings in the future. Therefore,
respondent proffers that David Lans Stout should not be awarded lost earnings as provided under
the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.
C. Pain and Suffering
Respondent proffers that David Lans Stout should be awarded $160,000.00 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
Petitioner represents that he has not incurred past unreimbursable expenses related to his
vaccine-related injury.
II. Form of the Award
The parties recommend that the compensation provided to David Lans Stout should be
made through a combination of lump sum payments and future annuity payments as described
below, and request that the Chief Special Master’s decision and the Court’s judgment award the
following: 2
A. A lump sum payment of $171,976.44, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($11,976.44), and pain and
suffering ($160,000.00), in the form of a check payable to petitioner, David Lans Stout.
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-
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,
David Lans Stout, only so long as David Lans Stout 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
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.
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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, David Lans Stout, 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 David Lans Stout’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 Sum paid to petitioner, David Lans Stout: $171,976.44
B. An amount sufficient to purchase the annuity contract described
above in section II.B.
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-
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
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
/s/Mallori B. Openchowski
MALLORI B. OPENCHOWSKI
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) 305-0660
Dated: November 14, 2019
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Appendix A: Items of Compensation for David Lans Stout Page 1 of 1
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Years 7-Life
2019 2020 2021 2022 2023 2024 2025-Life
Medicare Part B Deductible 5% *
Medicare Supplement 5% M 2,360.40 2,360.40 2,360.40 2,360.40 2,360.40 2,360.40 2,360.40
Dr. Hentschel 5% *
Gym Membership 4% 396.00 396.00 396.00 396.00 396.00 396.00 396.00
Gabapentin 5% * M 34.20 34.20 34.20 34.20 34.20 34.20 34.20
Scooter 4% 1,575.00 315.00
Scooter Batteries 4% 44.00 44.00
Scooter Maintenance 4% 126.00 126.00
Scooter Lift 4% 1,899.00
Grab Bars 4% 39.90 3.99 3.99 3.99 3.99 3.99 3.99
Raised Toilet Seat 4% 70.38 14.08 14.08 14.08 14.08 14.08 14.08
Rolling Shower Chair 4% 224.18 44.84 44.84 44.84 44.84 44.84 44.84
Recumbent Bike 4% 450.00
Cane 4% 15.99 8.00 8.00 8.00 8.00 8.00 8.00
Cane Tips 4% 5.39 2.70 2.70 2.70 2.70 2.70 2.70
Home Care 4% M 3,120.00 3,120.00 3,120.00
Home Mods 4% 4,500.00
Stair Lift 4% 3,880.00
Pain and Suffering 160,000.00
Annual Totals 171,976.44 2,864.21 2,864.21 2,864.21 5,984.21 9,628.21 6,469.21
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 ($11,976.44) and pain and suffering ($160,000.00): $171,976.44.
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.