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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 31, 2019
* * * * * * * * * * * * * * * * * * * UNPUBLISHED
ALEXIS GARNER, on behalf of K.G., *
* No. 17-1166V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Decision on Damages; Proffer; Table Injury;
AND HUMAN SERVICES, * Varicella Vaccine; Disseminated Varicella
* Vaccine-Strain Viral Disease.
Respondent. *
* * * * * * * * * * * * * * * * * * *
John P. Valente, III, The Valente Law Group, Crofton, MD, for petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for respondent.
DECISION ON DAMAGES1
On August 27, 2017, Alexis Garner, on behalf of K.G. (“petitioner”) filed a petition for
compensation (“Petition”) under the National Vaccine Injury Compensation Program (“the
Program”).2 Petition (ECF No. 1). Petitioner alleged that her minor child K.G. received a
varicella vaccination on May 18, 2015, and as a result, K.G. suffered from “two strokes and
hemiparalysis.” Id. at 1. On February 20, 2018, respondent filed a report pursuant to Vaccine
Rule 4(c) stating that petitioner’s claim was appropriate for compensation. Respondent’s Report
(“Resp. Rpt.”) (ECF No. 17) at 1. Specifically, respondent agreed that K.G.’s alleged injury is
consistent with disseminated varicella vaccine-strain disease, there are no other identified causes,
and she suffered the sequelae of this injury for more than six months. Id. Accordingly, on
March 5, 2019, I issued a ruling that petitioner was entitled to compensation. Ruling on
Entitlement (ECF No. 18). The case moved to the damages phase.
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the decision is posted on the court’s
website, each party has 14 days to file a motion requesting 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). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et seq.
(hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the
Act.
On July 31, 2019, respondent filed a proffer on an award of compensation, which
indicates petitioner’s agreement to compensation on the terms set forth therein. Proffer (ECF
No. 53). The proffer is attached hereto as Appendix A.
Consistent with the terms of the proffer, I hereby award the following compensation
for all damages that would be available under 42 U.S.C. § 300aa-15(a):
1) A lump sum payment of $853,237.17, representing compensation for lost earnings
($603,435.45), pain and suffering ($235,000.00), and life care expenses for Year One
($14,801.72), in the form of a check payable to petitioner as guardian(s)/
conservator(s) of K.G., for the benefit of K.G.;
2) A lump sum payment of $31,629.40, representing compensation for satisfaction of
the State of Maryland Medicaid lien, payable jointly to petitioner and
Maryland Department of Health
Division of Recoveries and Financial Services
P.O. Box 13045
Baltimore, MD 21203
MA # 49-005154-300
Attn: Raheem King, Recoveries Officer
Petitioner agrees to endorse this payment to Maryland Department of Health;
3) A lump sum payment of $70,409.79, representing compensation for satisfaction of
the Kaiser Mid-Atlantic lien, payable jointly to petitioner and
The Rawlings Company LLC
P.O. Box 2000
La Grange, KY 40031
Reference No.: 78461650
Attn: Steven D. Taylor
Petitioner agrees to endorse this payment to The Rawlings Company LLC; and
4) An amount sufficient to purchase the 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 in the proffer, paid to the life
insurance company from which the annuity will be purchased.
2
Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with
the terms of the proffer and this decision.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
3
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
ALEXIS GARNER, on behalf of K.G., )
)
Petitioner, )
)
v. ) No. 17-1166V
) Special Master Gowen
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 respondent engaged life care planner, Laura E. Fox, MSN, RN, CDDN, CNLCP, and
petitioner engaged Cathryn Winslow, BSN, CDMS, CCM, CNLCP, to provide an estimation of
K.G.’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 February 20, 2018. 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 K.G., attached hereto as Tab A. 1
Respondent proffers that K.G. 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.
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B. Lost Future Earnings
Respondent proffers that K.G. 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 K.G.’s lost earnings is $603,435.45. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that K.G. should be awarded $235,000.00 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 she has not incurred past unreimbursable expenses related to
K.G.’s vaccine-related injury.
E. Maryland Medicaid Lien
Respondent proffers that K.G. should be awarded funds to satisfy a State of Maryland
Medicaid lien in the amount of $31,629.40, which represents full satisfaction of any right of
subrogation, assignment, claim, lien, or cause of action the State of Maryland may have against
any individual as a result of any Medicaid payments the Maryland Medical Assistance Program
has made to or on behalf of K.G. 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 May 18, 2015,
under Title XIX of the Social Security Act.
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
-2-
F. Kaiser Mid-Atlantic Medicaid Lien
Respondent proffers that K.G. should be awarded funds to satisfy a Kaiser Mid-Atlantic
Medicaid lien in the amount of $70,409.79, which represents full satisfaction of any right of
subrogation, assignment, claim, lien, or cause of action Kaiser Mid-Atlantic may have against
any individual as a result of any Medicaid payments Kaiser Mid-Atlantic has made to or on
behalf of K.G. 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 May 18, 2015, under Title XIX
of the Social Security Act.
II. Form of the Award
The parties recommend that the compensation provided to K.G. 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: 2
A. A lump sum payment of $853,237.17 representing compensation for lost earnings
($603,435.45), pain and suffering ($235,000.00), and life care expenses for Year One
($14,801.72), in the form of a check payable to petitioner as guardian(s)/conservator(s) of K.G.,
for the benefit of K.G. No payments shall be made until petitioner provides respondent with
documentation establishing that she has been appointed as the guardian(s)/conservator(s) of
K.G.’s estate. If petitioner is not authorized by a court of competent jurisdiction to serve as
guardian(s)/conservator(s) of the estate of K.G., any such payment shall be made to the party or
anniversary of the date of judgment.
2 Should K.G. 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.
-3-
parties appointed by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of
the estate of K.G. upon submission of written documentation of such appointment to the
Secretary.
B. A lump sum payment of $31,629.40, representing compensation for satisfaction of the
State of Maryland Medicaid lien, payable jointly to petitioner and
Maryland Department of Health
Division of Recoveries and Financial Services
P.O. Box 13045
Baltimore, MD 21203
MA # 49-005154-300
Attn: Raheem King, Recoveries Officer
Petitioner agrees to endorse this payment to Maryland Department of Health.
C. A lump sum payment of $70,409.79, representing compensation for satisfaction of the
Kaiser Mid-Atlantic lien, payable jointly to petitioner and
The Rawlings Company LLC
P.O. Box 2000
La Grange, KY 40031
Reference No.: 78461650
Attn: Steven D. Taylor
Petitioner agrees to endorse this payment to The Rawlings Company LLC.
D. An amount sufficient to purchase the annuity contract, 3 subject to the conditions
described below, that will provide payments for the life care items contained in the life care plan,
3
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 company4 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
respondent’s purchase of an annuity, which annuity shall make payments directly to petitioner as
guardian(s)/conservator(s) of the estate of K.G., only so long as K.G. 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
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.
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.
-5-
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 K.G. 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 K.G.’s death.
3. Guardianship
No payments shall be made until petitioner provides respondent with documentation
establishing that she has been appointed as the guardian(s)/conservator(s) of K.G.’s estate. If
petitioner is not authorized by a court of competent jurisdiction to serve as
guardian(s)/conservator(s) of the estate of K.G., 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 K.G. 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 K.G.’s estate: $ 853,237.17
B. Maryland Medicaid Lien: $ 31,629.40
C. Kaiser Mid-Atlantic Medicaid Lien: $ 70,409.79
D. An amount sufficient to purchase the annuity contract described
above in section II. D.
-6-
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/Darryl R. Wishard
DARRYL R. WISHARD
Senior 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) 616-4357
Dated: July 31, 2019
-7-
Appendix A: Items of Compensation for K.G. Page 1 of 6
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-5 Year 6 Year 7 Year 8 Years 9-11 Year 12 Year 13
2019 2020-2023 2024 2025 2026 2027-2029 2030 2031
Insurance Premium 5% M 2,931.12 2,931.12 2,931.12 2,931.12 2,931.12 2,931.12 2,931.12 2,931.12
Insurance MOP 5% 6,850.00 6,850.00 6,850.00 6,850.00 6,850.00 6,850.00 6,850.00 6,850.00
Medicare Part B Deductible 5%
Medicare Supplement 5% M
Physical Medicine 5% *
Orthopaedics 5% *
Neurology 5% *
Botox Treatments 5% *
Psychotherapy 4% *
Psychological Testing 4% 3,150.00
OT 4% *
OT Eval 4% *
OT Episodic 4% *
PT 4% *
PT Eval 4% *
PT Episodic 4% *
MRI Brain 5% *
Case Management 4% M 4,860.00 3,240.00 3,240.00 3,240.00 3,240.00 3,240.00 3,240.00 3,240.00
Vocational Counseling 4%
Drivers Ed Evaluation 4% 500.00
Drivers Training 4% 715.00
Pull Up Diapers 4% 160.60
Shower Bench 4% 64.33 12.87 12.87 12.87 12.87 12.87
Hand Held Shower 4% 27.00 5.40 5.40 5.40 5.40 5.40
AFO 4% *
Hand Controls for Vehicle Adapt. 4% 3,000.00 300.00
Handrails 4%
Lost Future Earnings 603,435.45
Pain and Suffering 235,000.00
Maryland Medicaid Lien 31,629.40
Kaiser Mid-Atlantic Medicaid Lien 70,409.79
Annual Totals 955,276.36 13,021.12 13,112.45 13,039.39 16,189.39 13,039.39 17,254.39 13,339.39
Tab A
Appendix A: Items of Compensation for K.G. Page 2 of 6
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-5 Year 6 Year 7 Year 8 Years 9-11 Year 12 Year 13
2019 2020-2023 2024 2025 2026 2027-2029 2030 2031
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 K.G., for the benefit of K.G., for lost future earnings ($603,435.45),
pain and suffering ($235,000.00), and Yr 1 life care expenses ($14,801.72): $853,237.17.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and the State of Maryland, as reimbursement of the state's Medicaid lien: $31,629.40.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and The Rawlings Company LLC, as reimbursement of the Kaiser Mid-Atlantic Medicaid lien: $70,409.79.
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.
Appendix A: Items of Compensation for K.G. Page 3 of 6
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 14 Years 15-16 Year 17 Years 18-21 Years 22-26 Year 27 Years 28-36 Year 37
2032 2033-2034 2035 2036-2039 2040-2044 2045 2046-2054 2055
Insurance Premium 5% M 2,931.12 2,931.12 2,931.12 2,931.12 2,136.00 2,136.00 2,136.00 2,136.00
Insurance MOP 5% 6,850.00 6,850.00 6,850.00 6,850.00 6,500.00 6,500.00 6,500.00 6,500.00
Medicare Part B Deductible 5%
Medicare Supplement 5% M
Physical Medicine 5% *
Orthopaedics 5% *
Neurology 5% *
Botox Treatments 5% *
Psychotherapy 4% *
Psychological Testing 4%
OT 4% *
OT Eval 4% *
OT Episodic 4% *
PT 4% *
PT Eval 4% *
PT Episodic 4% *
MRI Brain 5% *
Case Management 4% M 3,240.00 3,240.00
Vocational Counseling 4% 5,000.00
Drivers Ed Evaluation 4%
Drivers Training 4%
Pull Up Diapers 4%
Shower Bench 4% 12.87 12.87 12.87 12.87 12.87 12.87 12.87 12.87
Hand Held Shower 4% 5.40 5.40 5.40 5.40 5.40 5.40 5.40 5.40
AFO 4% *
Hand Controls for Vehicle Adapt. 4% 300.00 300.00 300.00 300.00 300.00 300.00 300.00 300.00
Handrails 4% 1,000.00 1,000.00 1,000.00
Lost Future Earnings
Pain and Suffering
Maryland Medicaid Lien
Kaiser Mid-Atlantic Medicaid Lien
Annual Totals 18,339.39 13,339.39 11,099.39 10,099.39 8,954.27 9,954.27 8,954.27 9,954.27
Appendix A: Items of Compensation for K.G. Page 4 of 6
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 14 Years 15-16 Year 17 Years 18-21 Years 22-26 Year 27 Years 28-36 Year 37
2032 2033-2034 2035 2036-2039 2040-2044 2045 2046-2054 2055
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 K.G., for the benefit of K.G., for lost future earnings ($603,435.45),
pain and suffering ($235,000.00), and Yr 1 life care expenses ($14,801.72): $853,237.17.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and the State of Maryland, as reimbursement of the state's Medicaid lien: $31,629.40.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and The Rawlings Company LLC, as reimbursement of the Kaiser Mid-Atlantic Medicaid lien: $70,409.79.
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.
Appendix A: Items of Compensation for K.G. Page 5 of 6
Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 38-46 Year 47 Years 48-60 Years 61-Life
2056-2064 2065 2066-2078 2079-Life
Insurance Premium 5% M 2,136.00 2,136.00 2,136.00
Insurance MOP 5% 6,500.00 6,500.00 6,500.00
Medicare Part B Deductible 5% 185.00
Medicare Supplement 5% M 1,776.00
Physical Medicine 5% *
Orthopaedics 5% *
Neurology 5% *
Botox Treatments 5% *
Psychotherapy 4% *
Psychological Testing 4%
OT 4% *
OT Eval 4% *
OT Episodic 4% *
PT 4% *
PT Eval 4% *
PT Episodic 4% *
MRI Brain 5% *
Case Management 4% M
Vocational Counseling 4%
Drivers Ed Evaluation 4%
Drivers Training 4%
Pull Up Diapers 4%
Shower Bench 4% 12.87 12.87 12.87 12.87
Hand Held Shower 4% 5.40 5.40 5.40 5.40
AFO 4% *
Hand Controls for Vehicle Adapt. 4% 300.00 300.00 300.00 300.00
Handrails 4% 1,000.00
Lost Future Earnings
Pain and Suffering
Maryland Medicaid Lien
Kaiser Mid-Atlantic Medicaid Lien
Annual Totals 8,954.27 9,954.27 8,954.27 2,279.27
Appendix A: Items of Compensation for K.G. Page 6 of 6
Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Years 38-46 Year 47 Years 48-60 Years 61-Life
2056-2064 2065 2066-2078 2079-Life
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 K.G., for the benefit of K.G., for lost future earnings ($603,435.45),
pain and suffering ($235,000.00), and Yr 1 life care expenses ($14,801.72): $853,237.17.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and the State of Maryland, as reimbursement of the state's Medicaid lien: $31,629.40.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and The Rawlings Company LLC, as reimbursement of the Kaiser Mid-Atlantic Medicaid lien: $70,409.79.
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.