Andrea Botan, as the Mother and Legal Representative of Her Minor Daughter, Evelyn Botan v. Secretary of Health and Human Services 1

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-0063V
(E-Filed: July 3, 2013)
* * * * * * * * * * * * *
ANDREA BOTAN, as the mother * UNPUBLISHED
and legal representative of her *
minor daughter, EVELYN BOTAN * Special Master
* Hamilton-Fieldman
Petitioners, *
* DTaP Vaccine; Table Encephalopathy;
v. * Respondent’s Concession; Finding of
* Entitlement; Damages Decision Based
SECRETARY OF HEALTH * on Proffer
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * *
Curtis R. Webb, Twin Falls, ID, for Petitioner
Alexis B. Babcock, Washington, DC, for respondent
DECISION AWARDING DAMAGES 1
On January 28, 2011, Petitioner, Andrea Botan, filed a petition on behalf of her
minor child seeking compensation under the National Vaccine Injury Compensation
Program (Athe Vaccine Program@) for a vaccine-related injury. 2
1
The E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899,
2913 (codified as amended at 44 U.S.C. § 3501 note (2006)), requires that the court post
this decision on its website. In accordance with Vaccine Rule 18(b), Petitioner has 14
days to identify and move to delete medical or other information, that satisfies the criteria
in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for
redaction must include a proposed redacted decision. If, upon review, the undersigned
agrees that the identified material fits within the requirements of that provision, the
undersigned will delete such material from public access.
1
Respondent has conceded that Petitioner is entitled to compensation due to Evelyn
Botan suffering a diphtheria, tetanus, acellular pertussis (DTaP) Vaccine Table
presumptive injury of encephalopathy.
Informed by Respondent’s concession that an award of damages is appropriate, the
undersigned finds that Petitioner is entitled to compensation under the Vaccine Program.
On June 26, 2013, Respondent filed a Proffer detailing Respondent’s
recommendations of Damages (Proffer). In the Proffer Respondent represented that
Petitioner had agreed to all of the terms set forth therein. Based on the record as a whole,
the undersigned finds the Proffer reasonable and that Petitioner is entitled to an award as
stated in the Proffer. Pursuant to the terms stated in the attached Proffer, the court awards
Petitioner:
1. A lump sum payment of $551,303.00, representing the life care expenses
for Year One ($321,303.00), and the net present value of a portion of the
expenses for Year 2030 ($230,000.00), in the form of a check payable to
The Broadway National Bank for the benefit of the Evelyn Botan U.S.
Grantor Reversionary Trust;
2. A lump sum payment of $900,300.00, representing compensation for lost
future earnings ($650,300.00) and pain and suffering ($250,000.00), in the
form of a check payable to the guardian/conservator of Evelyn Botan’s
estate. No payments shall be made until Petitioner satisfies the
requirements set forth in the attached proffer with respect to the
guardianship/conservatorship of the estate of Evelyn Botan 3;
3. A lump sum payment of $7,000.00, representing compensation for past un-
reimbursed expenses, in the form of a check payable to Petitioner;
4. A lump sum payment of $31,490.11, representing compensation for
satisfaction of the State of Texas Medicaid lien, payable jointly to the
guardian/conservator and:
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755,
codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2006) (“Vaccine Act” or “Act”). All
citations in this decision to individual sections of the Act are to 42 U.S.C.A. § 300aa.
3
The Proffer requires that Petitioner appoint a guardian/conservator of Evelyn Botan’s
estate, as duly authorized under the laws of the State of Texas. As of the date of this
decision, nothing in the record indicates that this requirement has been fulfilled.
2
TMHP/Medicaid
TPL/Tort Department
P.O. Box 202948
Austin, TX 78720-2948
Attn: Tort Receivables
5. An amount sufficient to purchase an annuity contract(s), subject to the
conditions described in Section II. E. of the attached Proffer, 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 as Appendix A at 1-2]
paid to the life insurance company(ies) from which the annuity(ies) will be
purchased. 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 Evelyn Botan U.S. Grantor Reversionary Trust,
only so long as Evelyn Botan is alive at the time a particular payment is
due. The “annual amounts” set forth in Tab B [attached hereto as Appendix
A at 3-4] describe the total year sum to be paid to the Trust and do not
require that the payment be made in one single payment.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the
clerk of the court is directed to enter judgment herewith. 4
IT IS SO ORDERED.
s/Lisa Hamilton-Fieldman
Lisa Hamilton-Fieldman
Special Master
4
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties=
joint filing of notice renouncing the right to seek review.
3
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF THE SPECIAL MASTERS
)
ANDREA BOTAN, as the mother and )
legal representative of her minor )
daughter, EVELYN BOTAN ) No. 11-063V
)
Petitioner. ) Special Master Hamilton-Fieldman
)
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT'S RECOMMENDATIONS 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. LIFE CARE ITEMS
The parties engaged life care planners Laura E. Fox, MSN, BSN, RN, CDDN, CLCP for
the Respondent and Terry K. Arnold, RN, CDMS, CRRN, CLCP, CNLCP for the petitioner, to
provide an estimation of Evelyn Botan’s future vaccine-injury related needs. All items identified
in the agreed life care plan are supported by the evidence and are illustrated by the chart entitled
TAB A: Summary of Life Care Items.1
1
The chart at Tab A illustrates the annual benefits as contained in 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.
Respondent proffers Evelyn Botan should be awarded all items of compensation that are set forth
in the agreed life care plan and illustrated by the chart attached as Tab A. Petitioner agrees.
Respondent further proffers that the appropriate growth rate for life care items of compensation
should be four percent (4.0%) for non-medical items and six percent (6.0%) for medical items,
compounded annually from the date of judgment, as set forth in Tab B: Annuity Funding
Portfolio. Petitioner agrees.
B. LOST FUTURE EARNINGS
The parties agree that based upon the evidence in the record, Evelyn Botan will not be
able to engage in full-time gainful employment. Therefore, respondent proffers that Evelyn
Botan should be awarded lost future earnings as provided under the Vaccine Act, 42 U.S.C. §
300aa-15(a)(3)(B). Respondent proffers that the appropriate award for Evelyn Botan’s lost future
earnings is $650,300.00. Petitioner agrees.
C. PAIN AND SUFFERING
Respondent proffers that Evelyn Botan should be awarded $250,000.00 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.
D. PAST UNREIMBURSED EXPENSES
Evidence supplied by petitioners document their expenditure of past unreimbursable
expenses related to Evelyn Botan’s vaccine-related injury. Respondent proffers that the
petitioner is entitled to past un-reimbursed expenses in the amount of $7,000.00. Petitioner
agrees.
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E. MEDICAID LIEN
Respondent proffers that Evelyn Botan should be awarded funds to satisfy the State of
Texas Medicaid lien in the amount of $31,490.11, which represents full satisfaction of any right
of subrogation, assignment, claim, lien or cause of action the State of Texas may have against
any individual as a result of any Medicaid payments the State of Texas has made to or on behalf
of Evelyn Botan from the date of her eligibility for benefits through the date of judgment in this
case as a result of his vaccine-related injury suffered on or about December 3, 2009, under Title
XIX of the Social Security Act.
F. ATTORNEY’S FEES AND COSTS
This proffer does not address final attorneys’ fees and costs. Petitioner is entitled to
reasonable attorneys’ fees and costs, to be determined at a later date upon petitioner filing
substantiating documentation.
II. FORM OF THE AWARD
The parties recommend that the compensation provided to Evelyn Botan for her future
medical care needs should be made to a U. S. Grantor Reversionary Trust established for the
benefit of Evelyn Botan with payments made to the Trust through a combination of a one time
cash payment, annuity lump sum payments and future annuity payments as described below, and
request that the special master’s decision and the Court’s judgment reflect the following items of
compensation.
Respondent proffers and petitioner agrees that an award of compensation include the
following elements:
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A. A lump sum payment of $321,303.00, representing life care expenses for Year 1
and $230,000.00 representing the net present value of a portion of the expenses for Year 2030
($551,303.00) shall be awarded in the form of a check payable to The Broadway National Bank
for the benefit of the Evelyn Botan U. S. Grantor Reversionary Trust.
B. A lump sum payment of $900,300.00, representing compensation for lost future
earnings ($650,300.00) and pain and suffering ($250,000.00), in the form of a check payable to
the guardian/conservator of Evelyn Botan’s estate. No payments shall be made until petitioner
satisfies the requirements set forth below with respect to the guardianship/conservatorship of the
estate of Evelyn Botan.
C. A lump sum payment of $7,000.00, representing compensation for past un-reimbursed
expenses shall be awarded in the form of a check payable to petitioner.
D. A lump sum payment of $31,490.11, representing compensation for satisfaction of the
State of Texas Medicaid lien, payable jointly to the guardian/conservator and
TMHP/Medicaid
TPL/Tort Department
P.O. Box 202948
Austin, TX 78720-2948
Attn: Tort Receivables
The guardian/conservator agrees to endorse this payment to the State of Texas.
E. An amount sufficient to purchase an annuity contract,2 subject to the conditions
described below, that will provide payments for the life care items contained in the life care plan,
2
In respondent’s discretion, respondent may purchase one or more annuity contracts
from one or more life insurance companies.
4
as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company3 from
which the annuity will be 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 Evelyn
Botan U. S. Grantor Reversionary Trust, only so long as Evelyn Botan is alive at the time a
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;
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.
5
particular payment is due. Payments will be provided to the Trust in annual or other
installments. The “annual amounts” set forth in Tab B describe the total year sum to be paid to
the Trust and do not require that the payment be made in one single payment.
Petitioner represents that John Eaton presently is, or within 90 days of the date of
judgment will become, duly authorized to serve as guardian/conservator of Evelyn Botan’s estate
under the laws of the State of Texas. No payments pursuant to paragraph II(B) of this Proffer
shall be made until petitioner provides the Secretary with documentation establishing Mr.
Eaton’s appointment as guardian/conservator of Evelyn Botan’s estate. If Mr. Eaton is not
authorized by a court of competent jurisdiction to serve as guardian/conservator of the estate of
Evelyn Botan at the time a payment pursuant paragraph II(B) to this Proffer is to be made, any
such payment shall be paid to the party or parties appointed by a court of competent jurisdiction
to serve as guardian/conservator of the estate of Evelyn Botan upon submission of written
documentation of such appointment to the Secretary.
1. Growth Rates
Respondent proffers that a four percent (4.0%) growth rate should be applied to all non-
medical life care items and a six percent (6.0%) growth rate should be applied to all medical life
care items. The benefits illustrated in the chart at Tab B that are to be paid through annuity
payments should grow as follows: four percent (4.0%) compounded annually from the date of
judgment and six percent (6.0%) compounded annually from the date of judgment. Petitioner
agrees.
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2. Life-contingent Annuity
The Trust will continue to receive the annuity payments for future medical care from the
Life Insurance Company only so long as Evelyn Botan 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 Evelyn Botan’s death.
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III. SUMMARY OF RECOMMENDED PAYMENTS FOLLOWING JUDGMENT
A. Lump Sum paid to the Guardian/Conservator of the Estate of Evelyn Botan:
$900,300.00;
B. Reimbursement of Medicaid Lien paid to Guardian/Conservator: $31,490.11;
C. Lump Sum paid to Petitioner: $7,000.00;
D. Lump Sum paid to Broadway National Bank for the benefit of the Evelyn Botan
U. S. Grantor Reversionary Trust in the amount of: $551,303.00; and
E. An amount sufficient to purchase the annuity contract described above in section
II. E.
Respectfully submitted,
STUART F. DELERY
Acting Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
GLENN A. MACLEOD
Senior Trial Counsel
Torts Branch, Civil Division
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/s/ Alexis B. Babcock
ALEXIS B. BABCOCK
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, DC 20044-0146
Tel.: (202) 616-7678
Dated: June 26, 2013
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