Rodriguez v. Secretary of Health and Human Services

Case 1:13-vv-00253-UNJ Document 142 Filed 02/18/20 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-253V
Filed: February 18, 2020
* * * * * * * * * * * * * * *
WILLIAM RODRIGUEZ, as the * UNPUBLISHED
Parent and Natural Guardian of *
C.R., a Minor, *
* Decision on Damages; Diphtheria-Tetanus-
Petitioners, * Acellular Pertussis (“DTaP”); Measles
v. * Mumps Rubella (“MMR”), Polio and
* Varicella Vaccinations; Juvenile
SECRETARY OF HEALTH * Dermatomyositis; Proffer
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * *
Mark T. Sadaka, Esq., Mark T. Sadaka, LLC, Englewood, NJ, for petitioner.
Linda S. Renzi, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Roth, Special Master:
On April 9, 2013, William and Brenda Rodriguez (“petitioners”) filed a petition on behalf
of their minor child, C.R., pursuant to the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa-10 et seq.2 (“Vaccine Act” or “the Program”). Petitioners allege that C.R.
developed juvenile dermatomyositis (“JDM”) as a result of the Diphtheria-Tetanus-acellular
Pertussis (“DTaP”), Measles-Mumps-Rubella (“MMR”), Polio, and Varicella vaccinations he
received on August 30, 2011. See Petition, ECF No. 1. An entitlement hearing was held on May
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Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the Court of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 (1986). Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).
1
Case 1:13-vv-00253-UNJ Document 142 Filed 02/18/20 Page 2 of 9
23-24, 2016 in Atlanta, GA; on October 26, 2017, I issued a ruling on entitlement, finding that
petitioners3 were entitled to compensation. See Ruling on Entitlement, ECF No. 116.
Respondent filed a proffer on February 14, 2020, agreeing to issue the following payments.
Proffer, ECF No. 141.
1. A lump sum payment of $99,204.68, representing compensation for pain and
suffering ($85,000.00), and life care expenses for Year One ($14,204.68), in the
form of a check payable to petitioner as guardian/conservator of C.R., for the
benefit of C.R.;4
2. A lump sum of $51,188.03, representing compensation for satisfaction of the State
of Georgia WellCare Medicaid lien, payable jointly to petitioner and
Equian, LLC
P.O. Box 32140
Louisville, KY 40232-2140
Equian File No.: 449353-116714
Attn: Lauren Hirsch
Petitioner agrees to endorse this payment to Equian, LLC; and
3. An amount sufficient to purchase the annuity contract as described in section II.
C. of the attached proffer.
These amounts represent 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.5
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
3
On January 21, 2020, the caption was amended in this matter to only include William Rodriguez as petitioner of
record in this matter. See Order, ECF No. 140.
4
No payments shall be made until petitioner provides respondent with documentation establishing that he has been
appointed as the guardian/conservator of C.R.’s estate. If petitioner is not authorized by a court of competent
jurisdiction to serve as guardian/conservator of the estate of C.R., any such payment shall be made to the party or
parties appointed by the court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of C.R.
upon submission of written documentation of such appointment to the Secretary.
5
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 1:13-vv-00253-UNJ Document 142 Filed 02/18/20 Page 3 of 9
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
WILLIAM RODRIGUEZ, as the Parent and )
Natural Guardian of C.R., a Minor, )
)
Petitioner, )
)
v. ) No. 13-253V
) Special Master Roth
SECRETARY OF THE DEPARTMENT OF ) ECF
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
The parties engaged Linda Curtis RN, MS, CCM, CNLCP, as a joint life care planner to
provide an estimation of C.R.’s future vaccine-injury related needs. For the purposes of this
proffer, the term “vaccine related” is as described in the Special Master’s Ruling on Entitlement,
filed October 26, 2017. 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
C.R., attached hereto as Tab A. 1 Respondent proffers that C.R. should be awarded all items of
compensation set forth in the life care plan and illustrated by the chart attached at Tab A. 2
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
The parties have no objection to the proffered award of damages. Assuming the Special Master
issues a damages decision in conformity with this proffer, the parties waive their right to seek
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Case 1:13-vv-00253-UNJ Document 142 Filed 02/18/20 Page 4 of 9
B. Lost Future Earnings
The parties agree that based upon the evidence of record, C.R. will more likely than not
be gainfully employed in the future. Therefore, respondent proffers that C.R. should not be
awarded lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B).
Petitioner agrees.
C. Pain and Suffering
Respondent proffers that C.R. should be awarded $85,000.00 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
C.R.'s vaccine-related injury.
E. Medicaid Lien
Respondent proffers that C.R. should be awarded funds to satisfy a State of Georgia
WellCare lien in the amount of $51,188.03, which represents full satisfaction of any right of
subrogation, assignment, claim, lien, or cause of action the State of Georgia WellCare may have
against any individual as a result of any Medicaid payments the State of Georgia WellCare has
made to or on behalf of C.R. from the date of his eligibility for benefits through the date of
judgment in this case as a result of his vaccine-related injury suffered on or about August 30,
2011, under Title XIX of the Social Security Act.
review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C.
§ 300aa-12(e), to seek review of the Special Master’s October 26, 2017, entitlement decision.
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Case 1:13-vv-00253-UNJ Document 142 Filed 02/18/20 Page 5 of 9
II. Form of the Award
The parties recommend that the compensation provided to C.R. 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: 3
A. A lump sum payment of $99,204.68 representing compensation for pain and suffering
($85,000.00), and life care expenses for Year One ($14,204.68), in the form of a check payable
to petitioner as guardian(s)/conservator(s) of C.R., for the benefit of C.R. No payments shall be
made until petitioner provides respondent with documentation establishing that he has been
appointed as the guardian(s)/conservator(s) of C.R.'s estate. If petitioner is not authorized by a
court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of C.R., any
such payment shall be made to the party or parties appointed by a court of competent jurisdiction
to serve as guardian(s)/conservator(s) of the estate of C.R. upon submission of written
documentation of such appointment to the Secretary.
B. A lump sum payment of $51,188.03, representing compensation for satisfaction of the
State of Georgia WellCare Medicaid lien, payable jointly to petitioner and
Equian, LLC
P.O. Box 32140
Louisville, KY 40232-2140
Equian File No.: 449353-116714
Attn: Lauren Hirsch
Petitioner agrees to endorse this payment to Equian, LLC.
3 Should C.R. 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, lost future earnings, and future pain and suffering.
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Case 1:13-vv-00253-UNJ Document 142 Filed 02/18/20 Page 6 of 9
C. An amount sufficient to purchase the annuity contract, 4 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 company5 from
which the annuity will be purchased. 6 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 as
guardian(s)/conservator(s) of the estate of C.R., only so long as C.R. 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.
4
In respondent’s discretion, respondent may purchase one or more annuity contracts from
one or more life insurance companies.
5
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. C.R. 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.
6
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.
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Case 1:13-vv-00253-UNJ Document 142 Filed 02/18/20 Page 7 of 9
1. Growth Rate
Respondent proffers that 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: 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 C.R. 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 C.R.’s death.
3. Guardianship
No payments shall be made until petitioner provides respondent with documentation
establishing that he has been appointed as the guardian(s)/conservator(s) of C.R.’s estate. If
petitioner is not authorized by a court of competent jurisdiction to serve as
guardian(s)/conservator(s) of the estate of C.R., any such payment shall be made to the party or
parties appointed by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of
the estate of C.R. upon submission of written documentation of such appointment to the
Secretary.
III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioner as court-appointed
Guardian(s)/conservator(s) of C.R.’s estate: $99,204.68
B. Medicaid Lien: $51,188.03
C. An amount sufficient to purchase the annuity contract described
above in section II. C.
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Case 1:13-vv-00253-UNJ Document 142 Filed 02/18/20 Page 8 of 9
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/Linda S. Renzi
LINDA S. RENZI
Senior Trial Counsel
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 616-4133
Dated: February 14, 2020
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Case 1:13-vv-00253-UNJ Document 142 Filed 02/18/20 Page 9 of 9
Appendix A: Items of Compensation for C.R. Page 1 of 1
Lump Sum
Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-13 Years 14-52 Years 53-Life
2020 2021-2032 2033-2071 2072-Life
Insurance Premium 5% M 6,304.68 6,304.68
Insurance MOP 5% 7,900.00 7,900.00 7,900.00
Medicare Supp 5% M 2,547.00
Neurologist 5% *
Lab Testing 5% *
CT Scan 5% *
PT 4% *
IVIG 5% *
Pain and Suffering 85,000.00
Medicaid Lien 51,188.03
Annual Totals 150,392.71 14,204.68 7,900.00 2,547.00
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 the court-appointed
guardian(s)/conservators(s) of the estate of C.R. for the benefit of C.R. for pain and suffering ($85,000.00) and
Yr 1 life care expenses ($14,204.68): $99,204.68.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and Equian, LLC, as representative of Wellcare, a State of Georgia Medicaid plan, as reimbursement of
the state's Medicaid lien: $51,188.03.
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 in column "G.R." above, 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 12 monthly installments at the discretion of respondent.