Tuckfield v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0156V
Filed: March 25, 2019
UNPUBLISHED
EMILY TUCKFIELD,
Special Processing Unit (SPU);
Petitioner, Damages Decision Based on Proffer;
v. Measles Mumps Rubella (MMR)
Vaccine; Varicella Vaccine;
SECRETARY OF HEALTH Inactivated Polio (IPV);
AND HUMAN SERVICES, Meningococcal Vaccine; Idiopathic
Thrombocytopenic Purpura (ITP)
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On February 2, 2017, Emily Tuckfield (“petitioner”) 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 as a result of the
administration of varicella, measles-mumps-rubella (“MMR”), inactivated polio (“IPV”),
and meningococcal vaccinations she received on August 19, 2015, she suffered from
idiopathic thrombocytopenic purpura (“ITP”). Petition at 1. The case was assigned to
the Special Processing Unit of the Office of Special Masters.
On November 6, 2017, a ruling on entitlement was issued, finding petitioner
entitled to compensation. On March 19, 2019, respondent filed a proffer on award of
1
The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
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).
compensation (“Proffer”) indicating petitioner should be awarded $124,085.46, with
$1,731.80 representing compensation for life care expenses expected to be incurred
during the first year after judgment, $85,000.00 in actual and projected pain and
suffering, and $37,353.66 for past unreimbursable expenses. Proffer at 4-5. In the
Proffer, respondent represented that petitioner agrees with the proffered award. Id.
Based on the record as a whole, the undersigned finds that petitioner is entitled to an
award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner the following:
A. A lump sum payment of $86,731.80 (representing compensation for life care
expenses expected to be incurred during the first year after judgment
($1,731.80), and pain and suffering ($85,000.00)) in the form of a check payable
to petitioner, Emily Tuckfield;
B. A lump sum payment of $24,714.94 (for partial past unreimbursable expenses) in
the form of a check payable jointly to petitioner, Emily Tuckfield, and her
parents, Matthew Tuckfield and Christy Tuckfield;
C. A lump sum payment of $12,638.72 (for partial past unreimbursable expenses) in
the form of a check payable to petitioner, Emily Tuckfield and Beaumont
Health, and
D. An amount sufficient to purchase the annuity contract described section II.D, in
the attached Proffer.
These amounts represent 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/Nora Beth Dorsey
Nora Beth Dorsey
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
EMILY TUCKFIELD,
Petitioner,
v. No. 17-156V
Chief Special Master Dorsey
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Laura Fox, MSN, BSN, CNLP, and petitioner
engaged Maureen Clancy, RN, BSN, CLP, to provide an estimation of Emily Tuckfield’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, filed November 6, 2017. Based on respondent’s
Rule 4(c) Report, the Chief Special Master found petitioner entitled to compensation on
November 6, 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
Emily Tuckfield, attached hereto as Tab A. 1 Respondent proffers that Emily Tuckfield 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.
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.
-1-
B. Lost Earnings
The parties agree that based upon the evidence of record, Emily Tuckfield has not
suffered a past loss of earnings and is not likely to suffer a loss of earnings in the future.
Therefore, respondent proffers that Emily Tuckfield 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 Emily Tuckfield 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
Evidence supplied by petitioner documents the expenditure of past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $37,353.66. Petitioner agrees.
II. Form of the Award
The parties recommend that the compensation provided to Emily Tuckfield should be
made through a combination of lump sum payments and future annuity payments as described
below, and request that the Chief Special Master’s decision and the Court’s judgment award the
following: 2
A. A lump sum payment of $86,731.80, representing compensation for life care expenses
expected to be incurred during the first year after judgment ($1,731.80), and pain and suffering
($85,000.00), in the form of a check payable to petitioner, Emily Tuckfield.
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.
-2-
B. A lump sum payment of $24,714.94, representing compensation for partial past
unreimbursable expenses, in the form of a check payable jointly to petitioner, Emily Tuckfield,
and her parents, Matthew Tuckfield and Christy Tuckfield.
Petitioner agrees to endorse this payment to Matthew Tuckfield and Christy Tuckfield.
C. A lump sum payment of $12,638.72, representing compensation for partial past
unreimbursable expenses, in the form of a check payable jointly to petitioner, Emily Tuckfield,
and Beaumont Health, and mailed to
Beaumont Health
P.O. Box 554878
Detroit MI 48255-4878
Guarantor #: 3378907
Petitioner agrees to endorse this payment to Beaumont Health.
D. 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 company 4 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
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,
Emily Tuckfield, only so long as Emily Tuckfield 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 she, Emily Tuckfield, 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 Emily Tuckfield’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, Emily Tuckfield: $86,731.80
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-
B. Lump Sum paid jointly to petitioner, Emily Tuckfield, and
her parents, Matthew Tuckfield and Christy Tuckfield: $24,714.94
C. Lump Sum paid jointly to petitioner, Emily Tuckfield, and
Beaumont Health: $12,638.72
D. An amount sufficient to purchase the annuity contract described
above in section II.D.
-5-
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/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
Direct dial: (202) 616-3644
Dated: March 19, 2019
-6-
Appendix A: Items of Compensation for Emily Tuckfield Page 1 of 1
Lump Sum
Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-6 Years 7-21 Years 22-45 Years 46-Life
2019 2020-2024 2025-2039 2040-2063 2064-Life
BCBS Deductible 5% 500.00 500.00 500.00 500.00
BCBS Rx Deductible 5% 250.00 250.00 250.00 250.00
Medicare Part B Deductible 5% 185.00
Hematologist 5% * 240.00 240.00 240.00 240.00 174.40
Opthalmologist 5% * 60.00 12.00 12.00
CBC, CMP 5% 336.80 336.80 336.80 336.80
Promacta 5% * M 300.00 300.00 3,000.00 3,000.00 4,553.80
Iron 4% 29.16 29.16 29.16 29.16 29.16
Mileage: Hematologist 4% 12.32 12.32 12.32 12.32 12.32
Mileage: Opthal-mologist 4% 3.52 0.70 0.70
Pain and Suffering 85,000.00
Partial Past Expenses (1) 24,714.94
Partial Past Expenses (2) 12,638.72
Annual Totals 124,085.46 1,680.98 4,380.98 4,368.28 4,954.68
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 ($1,731.80) and pain and suffering ($85,000.00): $86,731.80.
(1) As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and her parents, Matthew Tuckfield and Christy Tuckfield for partial past unreimbursable expenses: $24,714.94.
(2) As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and Beaumont Health for partial past unreimbursable expenses: $12,638.72.
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.