Afzali v. Secretary of Health and Human Services ( 2015 )

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 11-390V
Filed: March 7, 2014
(Not to be Published)
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N.A., a minor, by his Father *
and Natural Guardian, WALLI AFZALI, * Damages Decision Based on
* Proffer; Measles, Mumps, Rubella
Petitioner, * Vaccine; MMR; Encephalitis;
v. * Table Injury.
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
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Clifford J. Shoemaker, Esq., Shoemaker and Associates, Vienna, VA, for petitioner.
Jennifer L. Reynaud, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Vowell, Chief Special Master:
On June 14, 2011, Walli Afzali filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 [the
“Vaccine Act” or “Program”] alleging that his son, NA, suffered encephalitis within five to
fifteen days of receiving the measles, mumps, rubella vaccine and that the vaccine was
the cause of NA’s injury. Petition at Preamble.
On December 10, 2012, respondent filed a report pursuant to Vaccine Rule 4(c)
in which she conceded that petitioner established the requirements for compensation
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post this decision on the United States Court of Federal Claims' website, in accordance with 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)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and
move to delete medical or other information, that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B).
Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted
decision. If, upon review, I agree that the identified material fits within the requirements of that provision, I
will delete 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 (2006).
under the Vaccine Act. Respondent’s Report at 4. Thereafter, on January 2, 2013, I
issued a Ruling on Entitlement, finding petitioner entitled to compensation based on a
Vaccine Table injury. See 42 C.F.R. § 100.3(a)(III)(B). On the same day, I issued an
order regarding damages.
On March 6, 2014, respondent filed a Proffer on Award of Compensation
[“Proffer”], which indicated that the petitioner agreed to the compensation amount.
Pursuant to the terms stated in the attached Proffer, I award the following:
A. A lump sum payment of $1,153,833.20, representing compensation for lost
future earnings ($645,427.52), pain and suffering ($250,000.00), and life care
expenses for Year One ($258,405.68), in the form of a check payable to
petitioner as guardian/conservator of N.A., for the benefit of N.A., and
subject to the terms of the attached Proffer; and
B. A lump sum payment of $187,773.89, representing compensation for
satisfaction of the State of Illinois Medicaid lien, payable jointly to
petitioner and:
Illinois Department of Healthcare and Family Services
Bureau of Collections
Technical Recovery Section
401 S. Clinton, 5th Floor
Chicago, Illinois 60607-3800
Attn: Mr. Anthony Graham
Case No: 96-204-0000CS9504
Petitioner agrees to endorse this payment to the State of Illinois.
C. An amount sufficient to purchase the annuity contract described in
section II.C. of the attached Proffer.
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
3
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
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
N.A., a minor by his
Father and Natural Guardian,
WALLI AFZALI,
Petitioners, No. 11-390V
Chief Special Master Vowell
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
The respondent engaged life care planner, Ginger Walton, RN, MSN, FNP, CNCLP, and
petitioner engaged Tresa Johnson, RN, BSN, CNLCP, to provide an estimation of N.A.’s future
vaccine injury-related needs. For the purposes of this proffer, the term “vaccine injury” is as
described in the Chief Special Master’s ruling on entitlement filed January 2, 2013. All items of
compensation identified in the joint life care plan are supported by the evidence, and are
illustrated by the chart entitled Appendix A: Items of Compensation for N.A., attached hereto as
Tab A. 1 Respondent proffers that N.A. should be awarded all items of compensation set forth in
the joint 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 joint 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 Future Earnings
The parties agree that based upon the evidence of record, N.A. will not be gainfully
employed in the future. Therefore, respondent proffers that N.A. 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 N.A’s lost future earnings is $645,427.52. Petitioner
agrees.
C. Pain and Suffering
On February 3, 2014, the Chief Special Master issued a Ruling on Damages for Pain and
Suffering, finding that N.A. is entitled to the statutory cap of $250,000.00 in actual and projected
pain and suffering.
D. Past Unreimbursable Expenses
Petitioner has not provided evidence of any expenditures of past unreimbursable
expenses related to N.A.’s vaccine-injury. Respondent therefore proffers that petitioner should
be awarded no past unreimbursable expenses. Petitioner agrees.
E. Medicaid Lien
Respondent proffers that N.A. should be awarded funds to satisfy a State of Illinois
Medicaid lien in the amount of $187,773.89, which represents full satisfaction of any right of
subrogation, assignment, claim, lien, or cause of action the State of Illinois may have against any
individual as a result of any Medicaid payments the State of Illinois has made to or on behalf of
N.A. from the date of his eligibility for benefits through the date of judgment in this case as a
result of his vaccine-injury suffered on or about June 19, 2008, under Title XIX of the Social
Security Act.
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II. Form of the Award
The parties recommend that the compensation provided to N.A. should be made through
a combination of lump sum payments and future annuity payments as described below, and
request that the Court’s decision and the Court’s judgment award the following:
A. A lump sum payment of $1,153,833.20, representing compensation for lost future
earnings ($645,427.52), pain and suffering ($250,000.00), and life care expenses for Year One
($258,405.68), in the form of a check payable to petitioner as guardian/conservator of N.A., for
the benefit of N.A. No payments shall be made until petitioner provides respondent with
documentation establishing that he has been appointed as the guardian/ conservator of N.A.’s
estate. If petitioner is not authorized by a court of competent jurisdiction to serve as
guardian/conservator of the estate of N.A., any such payment shall be made to the party or
parties appointed by a court of competent jurisdiction to serve as guardian/conservator of the
estate of N.A. upon submission of written documentation of such appointment to the Secretary.
B. A lump sum payment of $187,773.89, representing compensation for satisfaction
of the State of Illinois Medicaid lien, payable jointly to petitioner and:
Illinois Department of Healthcare and Family Services
Bureau of Collections
Technical Recovery Section
401 S. Clinton, 5th Floor
Chicago, Illinois 60607-3800
Attn: Mr. Anthony Graham
Case No: 96-204-0000CS9504
Petitioner agrees to endorse this payment to the State of Illinois.
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C. An amount sufficient to purchase the annuity contract, 2 subject to the conditions
described below, that will provide payments for the life care items contained in the joint life care
plan, as illustrated by the chart at Tab A attached hereto, paid to the life insurance company 3
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 years shall be provided through
respondent's purchase of an annuity, which annuity shall make payments directly to petitioner (or
any other party who is appointed) as guardian(s)/conservator(s) of the estate of N.A., only so
long as N.A. 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.
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;
d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating:
AA-, AA, AA+, or AAA.
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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 N.A. 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 N.A.’s death.
3. Guardianship
No payments shall be made until petitioner provides respondent with documentation
establishing that he has been appointed as the guardian/conservator of N.A.’s estate. If petitioner
is not authorized by a court of competent jurisdiction to serve as guardian/ conservator of the
estate of N.A., any such payment shall be made to the party or parties appointed by a court of
competent jurisdiction to serve as guardian/conservator of the estate of N.A. upon submission of
written documentation of such appointment to the Secretary.
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.
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III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioner as court-appointed
guardian/conservator of N.A.’s estate: $1,153,833.20
B. Medicaid Lien: $ 187,773.89
C. An amount sufficient to purchase the annuity contract described
above in section II. C.
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
VORIS E. JOHNSON, JR.
Assistant Director
Torts Branch, Civil Division
/s Jennifer L. Reynaud
JENNIFER L. REYNAUD
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Telephone: (202) 305-1586
Date:
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