Scarlette v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0766V
UNPUBLISHED
MARK D SCARLETTE, Chief Special Master Corcoran
Petitioner, Filed: May 19, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
Respondent.
Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES1
On May 31, 2018, Mark D. Scarlette 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-Barré Syndrome (“GBS”) as
the result of an influenza (“flu”) vaccination administered on November 8, 2016. Petition
at 1. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
On May 3, 2019, a ruling on entitlement was issued finding Petitioner entitled to
compensation. On May 19, 2022, Respondent filed a proffer on award of compensation
(“Proffer”) indicating Petitioner should be awarded a lump sum payment of $444,619.80,
representing compensation for life care expenses expected to be incurred during the first
year after judgment ($24,893.57), lost earnings ($212,203.99), pain and suffering
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 Decision 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.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
($205,000.00), past unreimbursable expenses ($2,522.24), and an amount sufficient to
purchase an annuity contract subject to the conditions described in the attached Proffer
and Appendix. 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, I award Petitioner the
following:
A. A lump sum payment of $444,619.80, (representing compensation for life
care expenses expected to be incurred during the first year after judgment
($24,893.57), lost earnings ($212,203.99), pain and suffering ($205,000.00),
and past unreimbursable expenses ($2,522.24)), in the form of a check
payable to petitioner, Mark D. Scarlette.
B. An amount sufficient to purchase an annuity contract subject to the
conditions described in the attached Proffer and Appendix, that will provide
payments for the life care items contained in the life care plan, as illustrated
by the chart at Tab A (Appendix A), attached hereto, paid to the life insurance
company from which the annuity will be purchased.
These amounts represent compensation for all damages that would be available
under Section 15(a). The Clerk of 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
MARK D. SCARLETTE,
Petitioner, No. 18-766V
Chief Special Master Corcoran
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On May 31, 2018, Mark D. Scarlette (“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”), alleging that he suffered Guillain-Barré Syndrome (“GBS”) as a result
of receiving an influenza (“flu”) vaccination administered on November 8, 2016. Petition at 1.
On May 2, 2019, the Secretary of Health and Human Services (“respondent”) filed his Rule 4(c)
Report conceding that petitioner’s claim satisfies the requirements necessary to qualify as a
Table injury under the Vaccine Injury Table. ECF No. 25. On May 3, 2019, the Chief Special
Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 27.
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Laura Fox, MSN, BSN, RN, CLCP, and petitioner
engaged life care planner Cynthia Wilhelm, Ph.D., 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. 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 Mark D. Scarlette, attached hereto as Tab A. 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. 1 Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, Mark D. Scarlette has suffered
a loss of earnings. Therefore, respondent proffers that petitioner 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 Mark D. Scarlette’s lost earnings is $212,203.99. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $205,000.00 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 $2,522.24. Petitioner agrees.
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,
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
and request that the Chief Special Master’s decision and the Court’s judgment award the
following:2
A. A lump sum payment of $444,619.80, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($24,893.57), lost earnings
($212,203.99), pain and suffering ($205,000.00), and past unreimbursable expenses ($2,522.24),
in the form of a check payable to petitioner, Mark D. Scarlette.
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
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
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
respondent’s purchase of an annuity, which annuity shall make payments directly to petitioner,
Mark D. Scarlette, 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 he, Mark D. Scarlette, 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 Mark D. Scarlette’s death.
3. Guardianship
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
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
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to petitioner, Mark D. Scarlette: $444,619.80
B. An amount sufficient to purchase the annuity contract described
above in section II.B.
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER E. PEARLMAN
Deputy Director
Torts Branch, Civil Division
TRACI R. PATTON
Assistant Director
Torts Branch, Civil Division
s/Colleen C. Hartley
COLLEEN C. HARTLEY
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) 616-3644
Email: colleen.hartley@usdoj.gov
Dated: May 19, 2022
5
Appendix A: Items of Compensation for Mark D. Scarlette Page 1 of 1
Lump Sum
Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-5 Year 6 Year 7 Years 8-Life
2022 2023-2026 2027 2028 2029-Life
Medicare Part B Premium 5% M 2,041.20 2,041.20
Medicare Part B Deductible 5% *
Neurologist 5% * 35.00 35.00 35.00 35.00 35.00
Orthopedist 5% * 35.00 35.00 35.00 35.00 35.00
Physical Therapy Evaluation 4% * 35.00 35.00 35.00 35.00 35.00
Individual Counseling 4% * 180.00 180.00
Physical Therapy 4% * 70.00 70.00 70.00 70.00 70.00
Case Manager 4% 400.00 400.00 400.00 400.00 400.00
Supportive Care/Respite 4% M 5,760.00 5,760.00 5,760.00 5,760.00 5,760.00
Home Modifications 0% 16,094.37
Light Weight Power Scooter 4% 1,500.00 150.00 150.00
Battery 4% 250.00 125.00
Service for Power WC 4% 100.00 100.00
Adaptive Aides 4% *
Walker 4% * 33.00 6.60 6.60 6.60 6.60
Quad Cane 4% 45.00 9.00 9.00 9.00 9.00
Hand Held Sprayer 4% 45.00 9.00 9.00 9.00 9.00
Portable Ramp 4% 268.00
Scooter Hitch 4% 2,000.00 200.00 200.00
Cyclobenzaprine 5% * 120.00 120.00 120.00 120.00 120.00
Lost Earnings 212,203.99
Pain and Suffering 205,000.00
Past Unreimbursable Expenses 2,522.24
Annual Totals 444,619.80 8,520.80 10,427.60 7,179.60 7,054.60
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 ($24,893.57), lost earnings ($212,203.99), pain and suffering ($205,000.00), and past unreimbursable
expenses ($2,522.24): $444,619.80.
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.