Romo-Villanueva v. Secretary of Health and Human Services ( 2021 )

CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1609V
UNPUBLISHED
JESUS ROMO-VILLANUEVA, Chief Special Master Corcoran
Petitioner, Filed: May 25, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
Respondent.
Henry L. Jacobs, Law Offices of Henry Jacobs, PLLC, Tucson, AZ, for petitioner.
Lara Ann Englund, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On October 17, 2018, Jesus Romo-Villanueva 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).
Petition at 1. Petitioner further alleges that his GBS persisted for more than six months,
and that neither he nor any other party has ever filed any action or received compensation
in the form of an award or settlement for his vaccine-related injury. Petition at 1-2. The
case was assigned to the Special Processing Unit of the Office of Special Masters.
On November 12, 2019, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for GBS. On May 21, 2021, Respondent filed a proffer on award
of compensation (“Proffer”) indicating 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Proffer at 2. 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 compensation:
1. A lump sum payment of $160,198.04, representing compensation for life
care expenses expected to be incurred during the first year after judgment
($15,198.04), and pain and suffering ($145,000.00), in the form of a check
payable to Petitioner, Jesus Romo-Villanueva.
2. A lump sum payment of $11,473.17, representing compensation for
satisfaction of a Medicaid lien, payable jointly to Petitioner and Equian,
and mailed to:
Equian
P.O. Box 182643
Columbus, OH 43218-2643
Equian event number: 55239150
3. An amount sufficient to purchase an annuity contract, subject to the
conditions described in the Proffer, that will provide payments for the life
care items contained in the life care plan, as illustrated by the chart at Tab
A, beginning with compensation for Year Two (on the first anniversary of
the date of the judgment) and all subsequent years, paid to the life
insurance company from which the annuity will be purchased.
This amount represents compensation for all damages that would be available under
§ 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
JESUS ROMO-VILLANEUVA, )
)
Petitioner, )
)
v. ) No. 18-1609V
) Chief Special Master Brian Corcoran
SECRETARY OF )
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 17, 2018, Jesus Romo-Villanueva (“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”)
from an influenza (“flu”) vaccination administered on October 11, 2017. Petition at 1. On
November 1, 2019, the Secretary of Health and Human Services (“respondent”) filed his Rule
4(c) Report conceding that petitioner is entitled to compensation in this case, concluding that
petitioner suffered GBS following a flu vaccine he received on October 17, 2018. ECF No. 17.
On November 12, 2019, the Court issued a Ruling on Entitlement finding petitioner entitled to
compensation. ECF No. 19.
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Linda Curtis, RN MS, CNLCP, CCM, and
petitioner engaged Brook Feerick, RN, CCM, 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 the 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 Jesus Romo-Villanueva, 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. Petitioner agrees.
B. Pain and Suffering
Respondent proffers that petitioner should be awarded $145,000.00 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.
C. Medicaid Lien
Respondent proffers that Jesus Romo-Villanueva should be awarded funds to satisfy a
Medicaid lien in the amount of $11,473.17, which represents full satisfaction of any right of
subrogation, assignment, claim, lien, or cause of action the State of Arizona may have against
any individual as a result of any Medicaid payments the State of Arizona has made to or on
behalf of Jesus Romo-Villanueva 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 October 11,
2017, under Title XIX of the Social Security Act.
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,
2
and request that the Chief Special Master’s decision and the Court’s judgment award the
following: 1
A. A lump sum payment of $160,198.04, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($15,198.04) and pain and
suffering ($145,000.00), in the form of a check payable to petitioner, Jesus Romo-Villanueva.
B. A lump sum payment of $11,473.17, representing compensation for satisfaction of a
Medicaid lien, payable jointly to petitioner and:
Equian
P.O. Box 182643
Columbus, OH 43218-2643
Equian event number: 55239150
Petitioner agrees to endorse this payment to Equian.
C. 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,
as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company 3 from
1
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
In respondent’s discretion, respondent may purchase one or more annuity contracts from one
or more life insurance companies.
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;
3
which the annuity will be purchased. 4 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,
Jesus Romo-Villanueva, 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, Jesus Romo-Villanueva, is alive at the time that a particular
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.
4
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 Jesus Romo-Villanueva’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, Jesus Romo-Villanueva: $160,198.04
B. Medicaid lien: $ 11,473.17
C. An amount sufficient to purchase the annuity contract described above in section II.C.
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Acting Deputy Director
Torts Branch, Civil Division
s/ LARA A. ENGLUND
LARA A. ENGLUND
Assistant Director
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146 Benjamin Franklin Station
Washington D.C. 20044-0146
Tel: (202) 307-3013
E-mail: lara.a.englund@usdoj.gov
Dated: May 21, 2021
5
Appendix A: Items of Compensation for Jesus Romo-Villanueva Page 1 of 1
Lump Sum
Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-5 Year 6 Years 7-8 Years 15-Life
2021 2022-2025 2026 2027-2034 2035-Life
Medicare Part B Premium 5% M 1,782.00 1,782.00
Medicare Advantage MOP 5% 3,400.00 3,400.00 3,400.00 3,400.00 3,400.00
Primary Care 5% *
Neurologist 5% *
CBC, Chem Panel, UA 5% *
EMG/NCV 5% *
X-rays of Lower Back 5% *
Gabapentin 5% *
Ibuprofen 4% 22.62 22.62 22.62 22.62 22.62
Tylenol 4% 14.40 14.40 14.40 14.40 14.40
OT 4% *
PT 4% *
Individual Psychotherapy 4% *
Cane 4% 28.00 9.33 9.33 9.33 9.33
Walker 4% 38.00 7.60 7.60 7.60 7.60
Manual WC 4% *
Shower Chair 4% 84.00 16.80 16.80 16.80 16.80
Hand Held Shower 4% 35.62 5.94 5.94 5.94 5.94
Adjustable Bed 4% *
Life Alert 4% 409.40 359.40 359.40 359.40 359.40
Home Health Aid 4% M 9,048.00 9,048.00 9,048.00 18,096.00 18,096.00
Ancillary Services (Handyman) 4% 336.00 336.00 336.00 336.00
Pain and Suffering 145,000.00
Medicaid Lien 11,473.17
Annual Totals 171,671.21 15,002.09 13,220.09 22,268.09 21,932.09
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 ($15,198.04) and pain and suffering ($145,000.00): $160,198.04.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and Equian, as reimbursement of a Medicaid lien: $11,473.17.
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.