VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_09-vv-00427 Package ID: USCOURTS-cofc-1_09-vv-00427 Petitioner: Amber Roberts Filed: 2009-07-01 Decided: 2013-08-29 Vaccine: Tdap Vaccination date: Condition: transverse myelitis Outcome: compensated Award amount USD: 1559000 AI-assisted case summary: On July 1, 2009, Amber Roberts, through her attorney Thomas K. Herren, filed a petition in the National Vaccine Injury Compensation Program, alleging that she developed transverse myelitis as a result of receiving a tetanus-diptheria-acellular pertussis (Tdap) vaccine. Special Master Gary Zane issued a Ruling on Entitlement on August 29, 2013, finding that Amber was entitled to compensation. The case was subsequently reassigned to Special Master Nora Beth Dorsey and then to Special Master Brian Corcoran. On October 1, 2014, Special Master Corcoran issued a decision awarding damages based on a proffer submitted by the respondent. The public decision does not describe the specific date of vaccination or the exact age of Amber Roberts at the time of vaccination, other than it was approximately age eleven. Transverse myelitis is a condition recognized as a potential vaccine-related injury, and its occurrence following Tdap vaccination falls within recognized patterns of vaccine-related neuroinflammatory injury. Amber's injuries were severe and permanent, requiring her to use a wheelchair and manage urological dysfunction. Her life care plan included home health aide services, a functional electrical stimulation (FES) bicycle, a wheelchair-accessible van, and various medications including Abilify, Celebrex, Neurontin, Oxycodone, and Zoloft. Special Master Corcoran determined the damages award, which included a lump sum payment of $1,075,075.87 for lost future earnings ($820,286.73), pain and suffering ($250,000.00), and past unreimbursable expenses ($4,789.14). An additional lump sum of $478,905.74 was awarded for first-year life care expenses ($204,750.74) and trust seed funds ($274,155.00) for a U.S. Grantor Reversionary Trust. Payments were also made to satisfy a Kentucky Medicaid lien ($15,553.11) and a WellCare Medicaid lien ($3,101.91). A life-contingent annuity was established to cover future life care expenses, with annual amounts increasing at 4% for non-medical items and 5% for medical items, compounded annually. On February 25, 2015, Special Master Corcoran issued a separate decision approving a stipulation for attorney's fees and costs, awarding a lump sum of $56,000.00, payable jointly to Amber Roberts and her counsel, Thomas K. Herren. Theory of causation field: Petitioner Amber Roberts alleged that the Tdap vaccine, administered at approximately age eleven, caused her to develop transverse myelitis. The public decision notes that transverse myelitis following Tdap vaccination is a recognized vaccine-related neuroinflammatory injury pattern. Special Master Gary Zane found entitlement on August 29, 2013. Damages were determined by Special Master Brian Corcoran on October 1, 2014, based on a proffer. The award included $1,075,075.87 for lost earnings, pain and suffering, and past expenses, plus $478,905.74 for first-year life care expenses and trust seed funds, and satisfaction of Medicaid liens totaling $18,655.02. A life-contingent annuity was also established for future life care expenses. Attorney's fees of $56,000.00 were awarded on February 25, 2015. The public decision does not detail specific medical experts, the mechanism of injury, or the exact vaccination date, but notes the injury occurred on or about July 1, 2006. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_09-vv-00427-cl-extra-1041869 Date issued/filed: 2013-08-29 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 1041869 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 09-427V Filed: August 29, 2013 ************************* TO BE PUBLISHED ANITA ROBERTS and GARY ROBERTS, * Co-petitioners, as Next Friends, Parents * Special Master Zane acting on behalf of AMBER D. ROBERTS * their minor child, * * Petitioners, * Entitlement; tetanus-diptheria- * accellular pertussis vaccination (“Tdap”); * transverse myelitis (“TM”); v. * oligoclonal banding; infarction; * fibrocartilaginous embolism (“FCE”) SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * ************************* Thomas K. Herren, Herren & Adams, Lexington, KY, for Petitioner Ann D. Martin, United States Dep’t of Justice, Washington, DC, for Respondent 1 PUBLISHED RULING Petitioners, Anita Roberts and Gary Roberts (“Petitioners”), on behalf of their daughter, Amber Roberts (“A.R.”), filed a petition alleging that the tetanus-diptheria-acellular pertussis vaccine (“Tdap”) caused A.R. to suffer transverse myelitis. Petition at ¶ 1. Petitioners seek 1 Because this decision contains a reasoned explanation for the special master’s action in this case, the special master intends to post it on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, § 205, 44 U.S.C. § 3501 (2006). The decisions of the special master will be made available to the public with the exception of those portions that contain trade secret or commercial or financial information that is privileged and confidential, or medical or similar information whose disclosure would clearly be an unwarranted invasion of privacy. As provided by Vaccine Rule 18(b), each party has 14 days to file a motion requesting the redaction from this decision of any such alleged material. In the absence of a timely request, which includes a proposed redacted decision, the entire document will be made publicly available. If the special master, upon review of a timely filed motion to redact, agrees that the identified material fits within the categories listed above, the special master shall redact such material from the decision made available to the public. 42 U.S.C. § 300aa-12(d)(4); Vaccine Rule 18(b). 1 compensation pursuant to the National Childhood Vaccine Injury Act (“Vaccine Act”), as amended, 42 U.S.C. § 300aa-1, et seq. 2 As explained below, upon consideration of the record as a whole, the special master concludes that Petitioners have satisfied their burden of showing by preponderant evidence that the vaccine was a substantial factor in causing A.R.’s autoimmune problem, transverse myelitis (“TM”). As explained below, there is ample evidence to satisfy Althen’s Prong 1. Petitioners rely on the well-recognized theory of molecular mimicry as the plausible medical theory that explains how the vaccine could have caused A.R.’s injuries. And, there is no dispute regarding Althen’s Prong 3. The parties’ experts agree that the time between vaccination and onset, approximately four weeks, is a medically appropriate temporal relationship. The parties’ primary disagreement relates to Althen Prong 2 and whether Petitioners made a sufficient showing that there was a logical sequence of cause and effect between the vaccine and A.R.’s injuries. With regard to this issue, both parties have presented detailed evidence regarding the proper diagnosis of A.R.’s injury, the permanent paralysis of her lower extremities, and whether it was due to an inflammation caused by an autoimmune response, TM, or was the result of an infarction, embolism or FCE. As set forth below, the record, in particular, the clinical evidence and the results of the objective diagnostic tests with supporting medical literature in the record, sufficiently supports Petitioners’ claim as to Althen’s Prong 2. As such, Petitioners have satisfied all three Althen Prongs and have satisfied their burden. BACKGROUND A. Factual Background A.R. was born on July 2, 1995. P’s Ex. 1. During the first 11 years of her life A.R. was generally healthy. Tr. at 92-93, 108. On July 06, 2006, A.R. visited her pediatrician for a sixth grade check-up. P’s Ex. 13 at 26. Although she complained of back pain at that time, the records noted she was generally healthy. P’s Ex. 13 at 26. She received a Tdap vaccine. 3 P’s Ex. 13 at 51. After receiving the vaccine, A.R. noticed a knot under the skin where she receied the shot and her skin was slightly swollen. Tr. at 108. About a week after receiving the vaccine, A.R. felt her feet tingled a bit while she was riding in her father’s truck.4 Tr. at 109. The tingling was not like the sensation of her legs falling asleep, which she had experienced before. Tr. at 110. 2 The National Vaccine Injury Compensation Program (“Vaccine Program”) is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended, 42 U.S.C. § 300aa-10 through § 300aa-34 (2006). 3 The record refers to this vaccine as adult dT or Adacel, which is the brand name. Petitioner’s Ex. 13 at 26. 4 Petitioner reported sitting in the back of her father’s truck with her legs crossed for 30 to 45 minutes prior to feeling the tingling in her legs. Tr. at 111. Petitioner also reported never experiencing this type of tingling before. Id. at 110. 2 On August 4, 2006, A.R. went to the county fair with her mother, brother, and some of her brother’s friends. Tr. at 111-12. While at the fair, A.R. rode some rides. Tr. at 112. A.R. denied having any back or hip pain, Tr. at 112. Her mother said A.R. did not tell her about any pains.5 Tr. at 95, 112. The next morning A.R.’s mother recalled A.R. complaining of a slight back ache. Tr. at 96. At some point on August 5, 2006, A.R. went to the bathroom. Tr. at 113. On the way to the bathroom, her feet felt a little heavy although she was still able to walk to the bathroom. Tr. at 114-15. In addition, she had some slight incontinence. Tr. at 113. A.R. sat down on the toilet and her legs got heavy and she could not get back up. Tr. at 113. She fell to the bathroom floor. Tr. at 118. She still had some feeling in her legs but then it started to go away and eventually she felt nothing. Id. Her mother and brother helped her up, and they went to the hospital. Tr. at 113-14. At the hospital, the initial impression was an acute onset of being unable to feel or move her legs. P’s Ex. 5 at 1. The notes from A.R’s neurologic exam recorded A.R. as having “abnormal proprioception of the right and left lower extremities.” P’s Ex. 5 at 4. The symptoms were consistent with a central lesion leading to a sensory defect affecting both sides of the body. Id. An x-ray of the thoracic spine was taken, which showed no evidence of an acute fracture. Id. The primary diagnosis was acute paraplegia. Id. A.R. was transferred by ambulance to the Cincinnati Children’s Hospital. P’s Ex. 5 at 5. The impression recorded at the time A.R. presented at the emergency department of Cincinnati Children’s Hospital was acute onset lower extremity paralysis, afebrile, and without any previous illness. P’s Ex. 6A at 1. Magnetic Resonance Imaging (“MRI”) of A.R.’s cervical spine and a lumbar puncture were performed. P’s Ex. 6A at 5. Cerebral spinal fluid (“CSF”) results indicated a protein of 60 and red blood cell count of 8. P’s Ex. 11 at 439. It was noted that although the CSF study was considered normal, it was to be repeated because it was still very early after presentation. P’s Ex. 11 at 160, 162. The initial MRI report noted “mild central cord high T2 signal from T10 to the conus.” P’s Ex. 11 at 142. The impression was that this might represent myelitis, viral infection, or less likely cord ischemia or Guillain-Barre. P’s Ex. 6E at 1. Additionally, disc desiccation was observed at L2/L3, L3/L4, L4/L5, and L5/S1 and there was no evidence of cord compression. Id. A subsequent addendum note in the report observed an abnormal T2 signal within the cord appeared to extend to the T7 level, although axial T2-weighted images demonstrated motion artifact. P’s Ex. 6E at 1. A.R. was admitted to the hospital in stable condition with an ER diagnosis of paraplegia. P’s Ex. 6A at 1. 5 The hospital admission records reflect in the medical history that A.R. complained of bilateral hip pain the night of the fair. P’s Ex. 11 at 140; P’s Ex. 5 at 1. A.R. disputed this, testifying that the source of this statement was her father who had not been at home with her to have any knowledge of that. Tr. at 114. 3 On August 6, 2006, the attending physician noted the MRI findings with the T2 signal on at least the T10-T12 segments. P’s Ex. 11 a 146. He also noted bilateral flaccid paralysis of the lower extremities. Id. His impression was that A.R. had transverse myelitis. Id. On August 10, 2006, repeat CSF studies were performed. P’s Ex. 11 at 439-445. The repeat studies showed a white blood cell count of six [reference range: 0-4] and CSF protein at 58 mg/dL [reference range: 12-60 mg/dL]. P’s Ex. 11 at 439. Testing of the CSF obtained during the lumbar puncture on August 10, 2006, revealed oligoclonal bands, with the bands also present in A.R.’s serum sample, which had not been present previously. P’s Ex. 11 at 439-40. Additionally, the IgG levels had increased from the levels of August 6, 2006. Id. A.R.’s condition did not improve, and she subsequently began intravenous gamma globulin treatment on August 11, 2006, followed by a prednisone taper treatment started on August 12, 2006. P’s Ex. 11 at 165-166. A.R.’s condition, however, still did not change. P’s Ex. 11 at 165-166, 241. On August 14, 2006, it was noted that A.R. had “slightly improved sensation” and she was transferred to the inpatient rehabilitation floor with a formal diagnosis of transverse myelitis. P’s Ex. 11 at 174; P’s Ex. 6C at 1. Over the next month, A.R. received occupational, recreational, and physical therapy. P’s Ex. 11 at 243-388. A.R.’s condition, however, did not improve further, and she was discharged on September 15, 2006. P’s Ex. 11 at 387. After the discharge, A.R. was seen by pediatric neurologist, Lois Krousgrill, for a follow up on September 27, 2006. P’s Ex. 11 at 390, 491-92. Dr. Krousgrill noted that A.R. had no recovery from motor or sensory function. P’s Ex. 11 at 492. Dr. Krousgrill’s impression was idiopathic TM. P’s Ex. 11 at 489. A second MRI was performed on November 1, 2006 which showed a subtle hyperintense T2 signal “centrally within the cord at the T6-T7 level.” P’s Ex. 11 at 1670. The report continued: “Hyperintense T2 signal to a greater degree is noted with the cord from the T8-T9 level to the L1 level.” P’s Ex. 11 at 1670. The radiologist noted that the signal at the T8-T9 level “likely represents myelomalacia.” Id. “Significant atrophy” from T8-T9 to the tip of the conus was also observed. Id. In addition, the image was remarkable for mild disc desiccation from L2-3 to L5-S1 level, as well as subtle disc bulges at L2-L3, L3-L4, and L4-L5. Id. A.R. was readmitted to Cincinnati Children’s hospital for initial plasmapheresis treatments on October 30, 2006 and November, 2, 2006. Id. at 519-536. She received further plasmapheresis treatments three times per week over the next two weeks. Id. Unfortunately, Amber did not improve upon the treatment and no marked recovery was observed. 6 Id. Despite treatment and therapy, A.R. continued to have a neurogenic bladder/bowel, period decubitis ulcers, multiple UTIs, incontinence, vaginal candidiasis, joint contractures, and constipation since the onset of the acute paralysis symptom. Petition at 2. At the time of hearing, A.R. was in 11th grade, was still in a wheelchair and could not stand or walk. Tr. at 116. 6 There were ten treatments originally scheduled, but the ninth and tenth were abandoned when A.R. had no recovery after the first eight treatments. Tr. at 99 -100. 4 B. Procedural History On July 1, 2009, Petitioners, Gary Roberts and Anita Roberts filed a petition for compensation under the National Vaccine Injury Act if 1986 (“the Vaccine Act”), 42 U.S.C. §300a-10, et seq., as amended, on behalf of her daughter, A.R. Petitioners alleged that A.R. suffered from TM as a result of her receipt of a Tdap vaccine on July 06, 2006. Petition ¶1. Subsequently, the parties filed expert reports. P’s Ex. 14 and R’s Ex. A. On October 14, 2010, pursuant to order of the previously assigned Special Master, supplemental expert reports were filed. P’s Exs. 18 and 19; R’s Exs. C, L and N.7 On March 26 and 27, 2012, an entitlement hearing was held in Cincinnati, OH. One of the petitioners, Anita Roberts, and A.R. testified. Tr. at 91 and 107. Three expert witnesses testified on behalf of Petitioners. First, Dr. Lois Krousgrill, a neurologist, who had examined A.R. at and near the time of the onset of A.R.’s injuries, testified. Tr. at 4. She opined that A.R. had TM, not an embolism or infarction or fibrocartilaginous embolism (“FCE”)8 based on her clinical picture and the results of diagnostic tests. Tr. at 89-90. She further testified that she believed there was a relationship between the vaccine and A.R.’s TM. Tr. at 15. Second, Dr. Sidney Houff, a neurologist, testified. Tr. at 122. Dr. Houff opined that A.R. had suffered from an autoimmune reaction to the vaccine she received which caused her to have transverse myelitis.9 Tr. at 125. Third and finally, Dr. Mary Edwards-Brown, a neuroradiologist, testified that this was an unusual case of TM. Tr. at 321. She further concluded that the TM was due to the vaccine. Tr. at 321. Two experts testified on behalf of Respondent. First, Dr. John Sladky, a neurologist, testified. Tr. at 247. He opined that he believed that A.R.’s clinical features were more indicative of a spinal cord infarction, an embolism or FCE than TM, an inflammatory condition. Tr. at 250. He further opined that even if A.R. had TM, he did not think there was enough evidence to conclude the vaccine caused it. Tr. at 287. Second, Dr. Louis Vezina, a neuroradiologist, testified. Tr. at 408. Dr. Vezina opined that based on the imaging studies, the findings were consistent with those of a lower spinal cord 7 This matter was transferred to this special master in March 2011. 8 Infarction, embolism and FCE are described in various places in the record and the terms are used interchangeably. In essence, they refer to an event that abruptly stops the blood flow to the spinal cord, i.e., a stroke in the spinal cord. R’s Ex. C.; see also Tr. at 38 (infarction is a blood clot in the spine); Tr. at 36-37 (an embolism was described as a blockage that caused a cut off of blood flow down the spine). 9 Transverse myelitis (TM) is an acute “inflammatory” disorder of the spinal cord resulting in bilateral motor, sensory, and sphincter deficits below the level of the lesion. R’s Ex. E. 5 infarct although he acknowledged that they could evidence TM. Tr. at 412-414. He deferred to a neurologist to decipher A.R.’s clinical picture. Tr. at 454-455. APPLICABLE LEGAL STANDARDS The Vaccine Act provides two means of recovery: Table claims and off-Table claims.10 In an off-Table, or causation-in-fact case, such as this one, a petitioner must prove actual causation by a preponderance of the evidence. Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010). To prove actual causation, a petitioner must “show that the vaccine was ‘not only a but-for cause of the injury but also a substantial factor in bringing about the injury.’ ” Moberly, 592 F.3d at 1321–22 (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1352–53 (Fed. Cir. 1999)). Causation is determined on a case-by-case basis. Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548 (Fed. Cir. 1994). A petitioner satisfies this burden if he or she provides: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of proximate temporal relationship between vaccination and injury. Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). A petitioner must satisfy the three Althen prongs by preponderant evidence. Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006). This preponderant-evidence standard “simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence.” Moberly, 592 F.3d at 1322 n.2; Althen, 418 F.3d at 1279 (citing Hellebrand v. Sec’y of Health & Human Servs., 999 F.2d 1565, 1572–73 (Fed. Cir. 1993)) (noting the standard requires that a petitioner demonstrate the existence of the element is “more probable than not.”). Evidence used to satisfy one of the Althen prongs can overlap and be used to satisfy another prong. Capizzano, 440 F.3d at 1326. There are no “hard and fast per se scientific or medical rules” for finding causation under the Vaccine Act. Knudsen, 35 F.3d at 548. The Vaccine Act does provide that a claimant may satisfy the preponderant evidence standard by producing “medical records or a medical opinion.” 42 U.S.C. § 300aa-13(a)(1). A petitioner must provide a reputable medical or scientific explanation that pertains specifically to the petitioner's case. Moberly, 592 F.3d at 1322. However, the explanation need only be “legally probable, not medically or scientifically certain.” Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339, 1345-46 (Fed. Cir. 2010); Moberly, 592 F.3d at 1322 (quoting Knudsen, 35 F.3d at 548-49). Along these lines, a special master may not require “epidemiologic studies. . .or general acceptance in the scientific or medical communities. . . .” Andreu, 569 F.3d at 1378. At the same time, special masters are “entitled to require some indicia of reliability to support the assertion of the expert witness.” Moberly, 592 F.3d at 1324; Cedillo v. Sec’y of Health & Human Servs., 617 F.3d 1328, 1339 (Fed. Cir. 2010). In determining reliability, a 10 In a Table case, unlike the present case, a claimant who shows that he or she received a vaccination listed in the Vaccine Injury Table, 42 U.S.C. § 300aa–14, and suffered an injury listed in the Table within a prescribed period is afforded a presumption of causation. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1374 (Fed. Cir. 2009). 6 special master may appropriately rely on the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993); see Terran v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1316 (Fed. Cir. 1999) (finding that special masters’ use of the Daubert factors reasonable); Cedillo, 617 F.3d at 1338-39 (finding no legal error in the standards applied by the special master in utilizing Daubert). When a party relies upon expert testimony, that testimony must have a reliable scientific basis. Cedillo, 617 F.3d at 1339. Although a party need not produce medical literature to establish causation, where such evidence is submitted, the special master can consider it in reaching an informed judgment as to whether a particular vaccination likely caused a particular injury. Andreu, 569 F.3d at 1379; Althen, 418 F.3d at 1281; see also Daubert, 509 U.S. at 593-94. Causation can be supported by a treating physician's opinion that a vaccination was causally linked to the vaccinee's injury if the special master finds the opinion to be both reliable and persuasive. Moberly, 592 F.3d at 1324–25. At the same time, in cases in which a petitioner relies upon expert testimony to prove causation, the expert testimony must rest upon an objective and reliable scientific basis and must prove causation to a degree of legal certainty, but not to a medical or scientific certainty. See Moberly, 592 F.3d at 1322 (”A petitioner must provide a reputable medical or scientific explanation that pertains specifically to the petitioner's case, although the explanation need only be ‘legally probable, not medically or scientifically certain.’”) (quoting Knudsen, 35 F.3d at 548–49); see also Cedillo, 617 F.3d at 1339; Terran, 195 F.3d at 1316. Although a petitioner may rely solely on expert testimony, “[a]n expert opinion is no better than the soundness of the reasons supporting it.” Perreira v. Sec'y of Health & Human Servs., 33 F.3d 1375, 1377 n.6 (Fed. Cir. 1994). Therefore, a special master does not need to credit “expert opinion testimony that is connected to the existing data or methodology ‘only by the ipse dixit of the expert,’ or where ‘there is simply too great an analytical gap between the data and the opinion proffered.’” Jarvis v. Sec'y of Health & Human Servs., 99 Fed. Cl. at 61 (quoting Cedillo, 617 F.3d at 1339). With regard to alternative causes, the respondent bears the burden of proving by preponderant evidence that an alternative cause, or factor unrelated, was the sole cause of the injury. 42 U.S.C. § 300aa-13; de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1354 (Fed. Cir. 2008); Knudsen, 35 F.3d at 549. But, neither 42 U.S.C. § 300aa-13 nor the decisions limit what evidence the special master may consider in deciding whether a prima facie case has been established. Doe 11 v. Sec’y of Health & Human Servs., 601 F.3d 1349, 1358 (Fed. Cir. 2010) (citing de Bazan, 539 F.3d at 1353); see also Walther v. Sec’y of Health & Human Servs., 85 F.3d 1146, 1151 (Fed. Cir. 2007). As a result, the government may also present and the special master may consider evidence of alternative causes on the issue of the adequacy of the petitioner’s evidence regarding the petitioner’s case-in-chief. Doe 11, 601 F.3d at 1358 (quoting de Bazan, 539 F.3d at 1354). In this regard, there are two particular points that the decisions make clear. First, a special master may not require the petitioner to shoulder the burden of eliminating all possible alternative causes in order to establish a prima facie case. Walther, 485 F.3d at 1151-52; Stone v. Sec’y of Health & Human Servs., 676 F.3d 1373, 1379-80 (Fed. Cir. 2012). Second, a special master may find that a factor other than a vaccine caused the injury in question only if that finding is supported by a preponderance of the evidence. Stone, 676 F.3d at 1379-80 (citing Doe 11, 601 F.3d at 1356–57); see Walther, 485 F.3d at 1151-52 (the petitioner does not bear the 7 burden of eliminating alternative independent potential causes, and the respondent has the burden of proving an alternative cause as the sole, unrelated factor that caused the injury by a preponderance of evidence). It is established that a special master is entitled to, and should, consider the record as a whole in determining causation. 42 U.S.C. § 300aa-13(a)(1)(A). In considering the record, the Vaccine Act does not contemplate full blown tort litigation. Knudsen, 35 F.3d at 548. A petitioner may use circumstantial evidence to prove the case, and “close calls” regarding causation must be resolved in favor of the petitioner. Althen, 418 F.3d at 1280. Indeed, “the purpose of the Vaccine Act’s preponderance standard is to allow the finding of causation in a field bereft of complete and direct proof of how vaccines affect the human body.” Althen, 418 F.3d at 1280); Capizzano, 440 F.3d at 1324. DISCUSSION Having considered the record as a whole and discussed below, the special master concludes that Petitioners have satisfied their burden of establishing by preponderant evidence that they are entitled to compensation. A. Petitioners Have Presented a Plausible Medical Theory, Molecular Mimicry, Along With Supporting Literature That the Vaccine Can Cause A.R.’s Injuries, Thereby Satisfying Althen Prong 1. Petitioners have satisfied Althen’s Prong 1 by presenting a plausible medical theory. In support of Prong 1, Petitioners’ expert, Dr. Houff, described the process of molecular mimicry as a mechanism whereby the vaccine could cause an autoimmune response that could result in TM, what he had concluded A.R. experienced. Tr. at 140-141. This was also discussed in the article submitted filed as P’s Ex. 32, Agnon-Levin, N., Transverse Myelitis and Vaccines: A multi-analysis, at 1201 (Ex. 32 at 113). Petitioners also submitted a number of other articles from various medical journals. See e.g., P’s Exs. 10.1 and 27. The medical literature submitted provided further support that it has been recognized that Tdap could cause TM. In particular, P’s Exs., 10.1 and 27 discuss vaccines as causes of autoimmune responses, to include TM; see also P’s Ex. 26. Those articles are evidence supportive of Petitioners’ theory. Respondent’s expert, Dr. Sladky, did not deny that vaccines might cause autoimmune responses such as TM. In commenting on Petitioners’ theory, without providing any particular reasoning, Dr. Sladky merely said, in a conclusory fashion, that he was not sure there was sufficient evidence on which to base Petitioners’ conclusion regarding a theory. Tr. at 287. Respondent’s expert did admit that Petitioners had certainly submitted literature in support of their theory. Tr. at 287-290. Dr. Sladky expressed that the articles were not that persuasive because they showed the rarity of TM post-vaccine. Tr. at 288, 290. Nonetheless, Dr. Sladky admitted that there were case reports that supported the theory of TM as a complication of vaccinations, including Tdap. Tr. at 586. For purposes of the Vaccine Program, Petitioners are not required to establish that there is epidemiological evidence to support their theory. Andreu, 569 F.3d at 1378. Rather, the 8 Vaccine Program acknowledges the rarity of vaccine-caused injuries, and, nonetheless, recognizes that compensation for such injuries is appropriate. See Althen, 418 F.3d at 1280 (the purpose of the Vaccine Act’s preponderance standard is to allow the finding of causation in a field bereft of complete and direct proof of how vaccines affect the human body); see also Knudsen, 35 F.3d at 549 (explaining that “to require identification and proof of specific biological mechanisms would be inconsistent with the purpose and nature of the vaccine compensation program”). Considering the evidence with these standards in mind, Petitioners have presented sufficient evidence to demonstrate a plausible medical theory by which the vaccine could have caused the condition with which Petitioners claim A.R. suffers, TM. Petitioners have satisfied Althen’s Prong 1. B. Petitioners Have Presented Preponderant Evidence That There Is a Logical Sequence of Cause and Effect Between the Vaccine and A.R.’s Injuries By Showing That A.R.’s Injuries Were Caused by An Autoimmune Response and Not an Embolism and that the Vaccine Was a Substantial Factor in Causing the Injury. Petitioners claimed that A.R. suffered from transverse myelitis, an inflammatory demylinating condition in the central nervous system that was caused by an autoimmune response. Respondent, on the other hand, while not claiming to present an alternative cause or factor unrelated as a defense, nonetheless, argued that there was evidence that A.R.’s injury was more likely caused by an embolism obstructing blood from flowing down the spine. As such, according to Respondent, Petitioners had not satisfied their burden as to Prong 2. The record demonstrates that there was evidence that A.R.’s clinical picture along with the diagnostic tests support that A.R.’s injuries were caused by an inflammation of the central nervous system that was caused by an autoimmune response. The record also demonstrates that there is preponderant evidence that the vaccine caused that injury. 1. Petitioners Have Shown By Preponderant Evidence That A.R. Experienced An Autoimmune Response. Petitioners have presented sufficient evidence that A.R.’s symptoms were caused by an autoimmune response. First, Dr. Krousgrill, onr of A.R.’s treating physician, concluded that A.R. had TM, a condition caused by an autoimmune response. In reaching her conclusion, Dr. Krousgrill relied on her examination of A.R., her review of medical records and her medical knowledge. One factor that Dr. Krousgrill considered was the progression of A.R.’s symptoms. Dr. Krousgrill noted that A.R.’s symptoms began with A.R. experiencing tingling in her legs shortly after receipt of the vaccination. Tr. at 10-12. The tingling in her legs was different than that she had experienced in the past. And, A.R. had also explained that for several hours before she went to the bathroom on August 5, 2006, A.R. had experienced tingling. Tr. at 10-11. This indicated that the onset was not the abrupt onset that occurred over a matter of minutes, a conclusion upon which Respondent’s experts had relied in formulating their opinions. Instead, it was consistent with an autoimmune response, TM. Tr. at 10-11. Dr. Krousgrill also looked at the temporal relation and the MRI findings that indicated a focal inflammatory process in the central portion of the cord that involved the entire cord. Tr. at 9 12. In addition, although the CSF proteins were steadily high between the first and second lumbar punctures, the fact is that A.R. did not have many white blood counts. Tr. at 13. Finally, the appearance of oligoclonal bands in the central nervous system indicated an active infection or inflammation. Tr. at 13. The location of the lesion and broad extent of it shown on the MRI findings indicated that it was more likely this was a transverse process. Tr. at 12-13. Dr. Houff testified that he concluded that A.R. suffered an autoimmune response. Tr. at 178. He based his conclusion on A.R.’s picture as a whole, i.e., the clinical picture, the exam, the radiology, her spinal fluid and all the studies. Tr. at 178. In particular, the signal on the MRI findings from that indicated a widespread effect, from T-2 through T-7, the evidence of oligoclonal banding after the second tap, the elevated complement, her high level of C-1 inhibitor, and the emergency room finding some sensation above the knee but no sensation below the knees and a mild sensation above the knees to T-12 and her poor rectal tone and incontinence all indicated that A.R. experienced a progressive, autoimmune response. Id. Additionally, Dr. Houff explained that A.R. met four of the criteria for TM as established by the Transverse Myelitis Working Group. R’s Ex. E.11 The four “inflammation” criteria that were present included abnormal godlinlim enhancement of the spinal cord, “a CSF pleocytosis,” and “elevated CSF IgG index.” Id. at 4. Those inflammatory markers within the spinal cord are critical factors to distinguish TM, a type of inflammatory myelopathy, from other non- inflammatory myelopathy, like “ischemia, radiation, epidural lipomatosis or fibrocartilagenous embolism.” R’s Ex. 3. Petitioners’ evidence shows that the presence of the majority of the criteria as well as the results of the independent evaluations support Petitioner’s request. There is ample evidence to support Petitioners’ 2. Respondent’s Argument That The Cause of A.R.’s Injuries is Likely an Embolism, Infarction or FCE Versus TM Is Unreliable And Unsupported by the Facts. Respondent’s claims that there is evidence that A.R.’s injuries are more likely caused by an embolism is unsupported by the objective clinical and diagnostic evidence, and her expert’s conclusions are unreliable. an this is Whereas both of Petitioners’ expert neurologists, Dr. Krousgill and Dr. Houff presented logically, reliable testimony, Respondent’s expert, Dr. Sladky’s testimony did not present the same level of reliability. First, Dr. Sladky admitted that the theory that this is an infarction cannot necessarily be shown. For instance, he admitted there was no evidence as to how an infarct might have happened because there is no evidence of any trauma. Tr. at 558-60. In part his conclusion is simply based on the fact that he “doesn’t think that TM would behave in the fashion it did. Tr. at 556-558. And, he admitted that there was no evidence of severe back pain, something indicative of FCE. Tr. at 564-566. 11 Transverse Myeltitis Consortium Working Group, Proposed Diagnostic Criteria and Nosology of Acute Transverse Myelitis, NEUROLOGY 59: 499-505 (2002). R’s Ex. E. 10 And, the objective evidence indicated that A.R.’s conditions are unlikely due to an embolism. As Dr. Brown explained, based on the view of the MRI, this was not an infarction because there is not a focal lesion that one would expect to see in an infarction. Tr. at 323. Rather, the lesion is quite widespread, consistent with an autoimmune response. Id. And, the injury about which Respondent theorizes is also inconsistent with the anatomy of the blood supply to the spinal cord. Tr. at 324-25. For this theory to actually occur this disk material would have had to enter one of the lumbar arterials and somehow communicated with a vessel coming off the aorta, but that's not the way the arterial anatomy works. Tr. at 324. One has a small artery at each lumbar vertebral level supplying a small amount of the blood supply to the cauda equine, and there's not even a spinal cord at that level, but just nerve roots. Id. One can somehow have an embolism in one artery and have it somehow get to another part of the spinal cord. Id. That's not the way the arterial anatomy is constructed. Id. Dr. Krousgrill testified that it was significant that the entire cord was affected and that inidicated this was TM versus an embolism. Tr. at 19-20. The two primary avenues for circulation to the cord are the anterior spinal artery. Id. It would be unusual to have an ischemia in all 3 vessels simultaneously all at the same level. Id. Unlike A.R.’s situation, when a spinal artery is involved it is typically an anterior or lateral cord syndrome with mild or mixed sensory results. Id. The clinical progression is not consistent with an infarction or embolism. Additionally, Dr. Brown also reiterated that which Petitioners’ other experts, Dr. Krousgrill and Dr. Houff, had already stated in connection with their conclusions of the lumbar punctures or spinal taps performed on August 6 as compared to those performed on August 10. Tr. at 314. It was significant that in the first tap there was not evidence of oligoclonal banding whereas in the section one there was because an inflammatory response in the spinal cord does not look full blown immediately. Id. It takes some time. Id. This objective, diagnostic evidence shows that there is a lack of support for Respondent’s claimed cause and support for Petitioners’ claim that A.R. experienced an autoimmune response. Second, Respondent’s expert, Dr. Sladky, acknowledged that there was a basis for a conclusion that A.R. had an autoimmune response. He admitted that some of the accepted criteria for TM were definitely present. Tr. at 555-56. He also admitted that there is respected literature that includes TM as a complication of vaccinations, including Tdap vaccinations. Tr. at 586. And he admitted that oligoclonal bands are indicative of an immune response. Tr. at 268-69. In fact Dr. Sladky’s explanation for the oligoclonal bands being in the serum and spinal fluid is not logical in light of the facts. He testified that there the presence of oligoclonal banding in serum and the spinal fluid even if it was infarction could be explained because IgG was produced originally in the serum as a result of immunization and was leaked into the spinal fluid through broken blood barrier resulting from infarction. Tr. at 541-43. But, Dr. Vezina disagreed that the banding would appear just in the course after a vaccine, saying it ws clearly an abnormal response. Tr. at 516. 11 Finally, a last factor in considering the reliability of his testimony that the special master must consider is the information that was revealed relative to Dr. Sladky’s status at the time of his work on this case and testimony. In May 2013, it was revealed that Dr. Sladky’s medical license had agreed not to practice medicine from August 2008 to March 2009 and then had agreed to a suspension of his license that lasted from June 2009 to March 2010. At that time his license was restored on a probationary basis, the probation finally terminating on July 2011. At the time he submitted his expert reports in this case, he was on probation. R’s Exs. A and C. And, in discussing his qualifications at the hearing, no mention was made of these circumstances and such information was glossed over. Tr. at 248. In fact, in his testimony, Dr. Sladky said he was the Chief of Pediatric Dept at Emory University until 2009. Id. But, given he was not practicing medicine after August 2008, it is questionable whether that could be the case. Certainly, this leads the special master to pause when weighting the experts’ opinions. For all the foregoing reasons, the special master does not find Dr. Sladky’s testimony as reliable and persuasive as the testimony of Dr. Houff and Dr. Krousgill. Dr. Vezina, Respondent’s neuroradiologist, admitted in his testimony that although he thought TM was less likely, based on the MRI findings, A.R.’s injuries could be either spinal cord infarction or TM. Tr. at 414. He also testified that with regard to an infarction there would have to be some sort of trauma. Tr. at 470. He deferred to the neurologist on this but admitted that he needed more information before he could state that such trauma had occurred. Tr. at 470- 471. He also acknowledged that A.R. had four of the recognized diagnostic criteria for TM, i.e., (1) development of sensory, motor, or autonomic dysfunction attributable to the spinal cord; (2) bilateral signs and/or symptoms; (3) clearly defined sensory level (assumes we have this but doesn’t have the medical records); (4) inflammation within the spinal cord demonstrated by CSF, or elevated IgG indexed. Tr. at 470-471. Dr. Vezina also testified that he had no direct evidence to prove that that Amber suffered an infarct from FCE. Tr. at 468. Finally, Dr. Vezina admitted that this was a close call and “it’s not a clear vascular thing” because it’s a focal lesion and on the whole cord. Tr. at 461. In many ways, Dr. Vezina’s testimony was consistent with Dr. Brown’s testimony as well as Petitioners’ other experts. He acknowledged that there was clearly clinical and diagnostic evidence that A.R. suffered from TM. As he stated this is a close call. In the Vaccine Program, Petitioners are accorded the benefit of close calls. 3. There Is Preponderant Evidence Showing the Vaccine to be a Substantial Factor In Causing the Autoimmune Response. There is also preponderant evidence that the Tdap vaccine was a substantial factor in causing A.R.’s TM. Dr. Krousgrill, the treating physician, concluded that having looked at a number of potential etiologies, the vaccine was significant. Admittedly, she could not make this a definitive diagnosis based upon a standard of reasonable degree of medical certainty, but she certainly believed there was a relationship between the vaccine and A.R.’s TM. Tr. at 15. Capizzano, 440 F.3d at 1326 (treating physician’s opinions should be considered). Dr. Houff also explained that in this case he felt there was enough data to conclude within a reasonable degree of medical probability that the vaccine caused A.R.’s injuries. Tr. at 12 211. In so doing, he explained that it’s very hard to conclude that vaccines cause injuries. Tr. at 210. He acknowledged the importance of vaccines. Tr. at 211. At the same time, based on his assessment of the clinical picture in this case, including (1) the progression of her illness, (2) the temporal association, (3) the lack of indication of another infection, the data was enough to conclude that the vaccine caused A.R. an aberrant immune response that attacked her nervous system, her spinal cord. Tr. at 211. And, Dr. Brown also discussed how she had concluded that the vaccine caused A.R.’s injuries. She relied on the classic appearance of TM on the imaging study, the time frame and A.R.’s history up to that point. Tr. at 321-323. Respondent’s expert, Dr. Sladky did not definitively rule out the vaccine as a cause. Instead, in his expert report he simply stated he did not think Dr. Houff provided a compelling argument to support this position. R’s Ex. A. Weighing the testimony as presented, the special master finds that Petitioners’ experts were more persuasive. They explained logically and methodically their reasoning for concluding the vaccine was a substantial factor. At the same time, they did not overstate their positions, instead acknowledging that it would be difficult, if not impossible, to prove the vaccine was the cause as a matter of medical certainty. On the other hand, Respondent’s expert primarily presented a conclusory statement that he did not believe Petitioners had satisfied their burden. In addition to that, the special master must also look at the cumulative evidence on all three prongs in that evidence that satisfies Prongs 1 and 3, can overlap and be used to satisfy Prong 2. Capizzano, 440 F.3d at 1326. Here, there is sufficient evidence to satisfy Prong 1. There is no question that Prong 3 has been satisfied. The treating physician, Dr. Krousgrill, having considered the clinical picture of A.R. at or near the time of the onset of symptoms looked for other potential causes and considered them but found none. Tr. at 8-9. Similarly, with regard to temporal relationship, there is not much question that it is satisfied. See infra VI.C. That evidence also overlaps and supports the evidence in the record relating to Prong 2. In sum, Petitioners have presented sufficient proof to demonstrate satisfy their burden as to Prong 2. In particular, the MRI at the time of the onset of A.R.’s condition indicated a lesion with the entire spinal cord being involved, which is consistent with inflammation versus embolism. Additionally, the presence of oligoclonal banding, which was not present initially, and the fact that the CSF protein levels increased, are indicators that the cause was an immune mediated process, which would eliminate FCE as a potential cause. The fact that A.R. reported having heaviness in her legs for some time and even up to hours before her trip to the bathroom when she was unable to move and still had some feeling for a period afterwards indicates that this was not an abrupt onset as Respondent contends and upon which her expert bases his conclusions. And Petitioners have also presented preponderant evidence that the Tdap vaccine A.R. received was a substantial factor in causing that autoimmune response. Petitioners’ experts carefully examined the record for other possible explanations, researched the medical literature. In weighing the Petitioners’ experts versus Respondent’s experts, the special master concludes that Petitioners’ experts’ opinions are more reliable. In particular, A.R.’s treating 13 physician, Dr. Krousgrill, testified for Petitioners that she had concluded A.R. had TM. Dr. Houff gave a reasoned explanation that A.R. had TM and that the vaccine caused it. On the other hand, Dr. Sladky, Respondent’s expert, admitted that embolisms were more rare than TM. Respondent’s claims that the evidence of inflammation was unlikely does not seem consistent with the appearance of oligoclonal bands. Dr. Vezina said that the appearance of banding would not occur merely because someone had a vaccine. Tr. at 516. Rather, it was clearly an abnormal response. Considering the supporting literature, the strong evidence of the temporal relation, the evidence of an autoimmune response and lack of any other possible etiology, there is sufficient evidence to show a logical sequence of cause and effect. Petitioners have satisfied Althen’s Prong 2. C. There is No Dispute as to Althen Prong 3. Finally, that there is a medically-appropriate temporal relationship is not disputed. The parties agreed that the time frame between the receipt of the vaccine on July 6, 2006 and the onset of the injuries on August 5, 2006, is medially appropriate. Joint Prehearing Submission at 1. CONCLUSION Upon review of the evidence and an assessment of the reliability of the opinions of the various expert witnesses, the special master concludes that Petitioners have established by preponderant evidence that they are entitled to compensation. The matter shall now proceed to consideration of damages. IT IS SO ORDERED. __/s/ ________________ Daria J. Zane Special Master 14 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_09-vv-00427-0 Date issued/filed: 2014-10-23 Pages: 18 Docket text: PUBLIC DECISION (Originally filed: 10/01/2014) regarding 103 DECISION Stipulation/Proffer (Signed by Special Master Brian H. Corcoran.)(mpj) Copy to parties. -------------------------------------------------------------------------------- Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 1 of 18 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 09-427V (Filed October 1, 2014) NOT TO BE PUBLISHED * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * AMBER ROBERTS, * * Decision based on proffer; Petitioners, * tetanus-diptheria-acellular * pertussis (“Tdap”) vaccine; v. * transverse myelitis (“TM”) * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Thomas K. Herren, Herren and Adams, Lexington, KY, for Petitioner. Ann D. Martin, U.S. Dep’t of Justice, Washington, D.C., for Respondent. DECISION AWARDING DAMAGES1 On July 1, 2009, Amber Roberts filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).1 Petitioner alleges that she suffered from transverse myelitis as a result of receiving the tetanus-diptheria-acellular pertussis (“Tdap”) vaccine. Respondent filed a Proffer on October 1, 2014, recommending an award of compensation for Petitioner (a copy of which is attached). I have reviewed the file, and based upon that review, I conclude that the parties’ proffer is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein. The Proffer awards: A. A lump sum payment of $478,905.74, representing compensation for life care expenses expected to be incurred during the first year after judgment ($204,750.74) and Trust seed funds for the U.S. Grantor Reversionary Trust established for the benefit of Amber Roberts ($274,155.00), in the form of a check payable to Bank of the Bluegrass & Trust Company, as trustee. 1 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended, 42 U.S.C.A. § 300aa-10 – 34 (2006)) [hereinafter “Vaccine Act” or “the Act”]. Individual sections references hereafter will be to § 300aa of the Act. Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 2 of 18 B. A lump sum payment of $1,075,075.87, representing compensation for lost future earnings ($820,286.73), pain and suffering ($250,000.00), and past unreimbursable expenses ($4,789.14), in the form of a check payable to petitioner, Amber Roberts. C. A lump sum payment of $15,553.11, representing compensation for satisfaction of the Commonwealth of Kentucky Medicaid lien, payable jointly to petitioner and Kentucky Medicaid Recovery Unit c/o HP Enterprise Services P.O. Box 2107 Frankfort, KY 40602 Attn: Veronica J. Cecil, Director Tel: 502-564-4958 Petitioner agrees to endorse this payment to Kentucky Medicaid Recovery Unit. D. A lump sum payment of $3,101.91, representing compensation for satisfaction of the WellCare Medicaid lien, payable jointly to petitioner and First Recovery Group LLC 26899 Northwestern Hwy Suite 250 Southfield, MI 48033 Attn: Bryan Cooley, Recovery Attorney Tel: 248-443-4800, ext. 276 Petitioner agrees to endorse this payment to First Recovery Group LLC. E. 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 joint life care plan, as illustrated by the chart at Tab A. Proffer at § II(A-E). I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.2 IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Special Master 2 2 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by both (either separately or jointly) filing a notice renouncing their right to seek review. Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 3 of 18 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS _________________________________________ ) AMBER ROBERTS, ) ) Petitioner, ) ) v. ) No. 09-427 ) Special Master Corcoran SECRETARY OF HEALTH ) ECF AND HUMAN SERVICES, ) ) Respondent. ) _________________________________________ ) RESPONDENT'S PROFFER ON AWARD OF COMPENSATION I. Items of Compensation A. Life Care Items The parties engaged life care planners, Shelly Kinney, MSN, RN, CCM, CNCLP, for respondent, and Cameron Parker, RN, BSN, CLCP, for petitioner, to provide an estimation of Amber Roberts’s future vaccine-injury related needs. See Respondent’s Exhibit Q (joint life care plan). For the purposes of this proffer, the term “vaccine-related” is as described in Special Master Zane’s Ruling on Entitlement filed August 29, 2013.1 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 Amber Roberts, attached hereto as Tab A.2 Respondent proffers that Amber Roberts 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 This case was reassigned to Special Master Hastings on September 5, 2013, and to Special Master Corcoran on January 14, 2014. 2 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. -1- Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 4 of 18 B. Lost Earnings The parties agree that based upon the evidence of record, Amber Roberts has suffered a past loss of earnings and will continue to suffer a loss of earnings in the future. Therefore, respondent proffers that Amber Roberts should be awarded lost earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B).3 Respondent proffers that the appropriate award for Amber Roberts’s lost earnings is $820,286.73. Petitioner agrees. C. Pain and Suffering Respondent proffers that Amber Roberts should be awarded $250,000.00 in actual pain and suffering. 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 $4,789.14. Petitioner agrees. E. Commonwealth of Kentucky Medicaid Lien Respondent proffers that Amber Roberts should be awarded funds to satisfy the Commonwealth of Kentucky Medicaid lien in the amount of $15,553.11, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the Commonwealth of Kentucky may have against any individual as a result of any Medicaid payments the Commonwealth of Kentucky has made to, or on behalf of, Amber Roberts from the date of her eligibility for benefits through the date of judgment in this case as a result of her vaccine-related injury suffered on or about July 1, 2006, under Title XIX of the Social Security Act. 3 Amber Roberts was eleven years of age at the time of the vaccine-related injury. She turned eighteen during the pendency of the petition. -2- Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 5 of 18 F. WellCare Medicaid Lien Respondent proffers that Amber Roberts should be awarded funds to satisfy the WellCare Medicaid lien in the amount of $3,101.91, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action WellCare may have against any individual as a result of any Medicaid payments WellCare has made to, or on behalf of, Amber Roberts from the date of her eligibility for benefits through the date of judgment in this case as a result of her vaccine-related injury suffered on or about July 1, 2006, under Title XIX of the Social Security Act. II. Form of the Award The parties recommend that the compensation provided to Amber Roberts for her future vaccine-related medical care be made to a U.S. Grantor Reversionary Trust established for the benefit of Amber Roberts with payments made to the Trust through a combination of a one-time cash payment and future annuity payments as described below, and request that the Special Master’s decision and the Court’s judgment award the following items of compensation:4 Respondent proffers and petitioner agrees that an award of compensation include the following elements: A. A lump sum payment of $478,905.74, representing compensation for life care expenses expected to be incurred during the first year after judgment ($204,750.74) and Trust seed funds for the U.S. Grantor Reversionary Trust established for the benefit of Amber Roberts ($274,155.00), in the form of a check payable to Bank of the Bluegrass & Trust Company, as trustee. 4 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. -3- Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 6 of 18 B. A lump sum payment of $1,075,075.87, representing compensation for lost future earnings ($820,286.73), pain and suffering ($250,000.00), and past unreimbursable expenses ($4,789.14), in the form of a check payable to petitioner, Amber Roberts. C. A lump sum payment of $15,553.11, representing compensation for satisfaction of the Commonwealth of Kentucky Medicaid lien, payable jointly to petitioner and Kentucky Medicaid Recovery Unit c/o HP Enterprise Services P.O. Box 2107 Frankfort, KY 40602 Attn: Veronica J. Cecil, Director Tel: 502-564-4958 Petitioner agrees to endorse this payment to Kentucky Medicaid Recovery Unit. D. A lump sum payment of $3,101.91, representing compensation for satisfaction of the WellCare Medicaid lien, payable jointly to petitioner and First Recovery Group LLC 26899 Northwestern Hwy Suite 250 Southfield, MI 48033 Attn: Bryan Cooley, Recovery Attorney Tel: 248-443-4800, ext. 276 Petitioner agrees to endorse this payment to First Recovery Group LLC. E. An amount sufficient to purchase an annuity contract,5 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 company6 5 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies. 6 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; (continued. . .) -4- Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 7 of 18 from which the annuity will be purchased.7 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 the trustee of the U.S. Grantor Reversionary Trust established for the benefit of Amber Roberts, only so long as Amber Roberts is alive at the time a particular payment is due. At the Secretary’s sole discretion, the periodic payments may be provided to the trustee 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 the trustee 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 The trustee will continue to receive the annuity payments from the Life Insurance Company only so long as Amber Roberts is alive at the time that a particular payment is due. 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. 7 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- Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 8 of 18 Written notice shall be provided to the Secretary of Health and Human Services, the trustee, and the Life Insurance Company within twenty (20) days of Amber Roberts’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 Bank of the Bluegrass & Trust Company: $ 478,905.74 B. Lump sum paid to petitioner: $1,075,075.87 C. Commonwealth of Kentucky Medicaid lien: $ 15,553.11 D. WellCare Medicaid lien: $ 3,101.91 E. An amount sufficient to purchase the annuity contract described above in section II. E. Respectfully submitted, JOYCE R. BRANDA Acting Assistant Attorney General RUPA BHATTACHARYYA Director Torts Branch, Civil Division VINCENT J. MATANOSKI Deputy Director Torts Branch, Civil Division GLENN A. MACLEOD Senior Trial Counsel Torts Branch, Civil Division s/ Ann D. Martin ANN D. MARTIN Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Dated: October 1, 2014 Telephone: (202) 307-1815 -6- Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 9 of 18 TAB A Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 10 of 18 Appendix A: Items of Compensation for Amber Roberts Page 1 of 9 Lump Sum Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 2014 2015 2016 2017 2018 2019 2020 2021 United Healthcare Choice Plus Premium 5% 1,265.68 1,265.68 1,265.68 United Healthcare Choice Plus Deductible 5% 450.00 450.00 450.00 United Healthcare Choice Plus MOP 5% 5,800.00 5,800.00 5,800.00 Anthem Gold Direct Premium 5% 2,474.88 2,474.88 2,474.88 2,474.88 2,474.88 Anthem Gold Direct Deductible 5% 750.00 750.00 750.00 750.00 750.00 Anthem Gold Direct MOP 5% 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00 Medicare Part B Premium 5% Medicare Part B Deductible 5% Medicare Advantage Premium 5% Medicare Advantage MOP 5% Medicare Adv Rx Deductible 5% Primary Care 5% * Urologist 5% * Urology Surgery 5% * PMR Physician 5% * Orthopedic Surgery 5% * Wound Physician 5% * ER 5% * Genito-Urinary Surger & Training 5% * Cystoscopy 5% * Urodynamic Testing 5% * Cystoscopy 5% * Renal Function Studies 5% * Cystatin C 5% * Urinalysis 5% * Urine Culture 5% * Venipuncture 5% * Spine X-rays 5% * Macrodantin 5% * 120.00 120.00 120.00 120.00 120.00 120.00 120.00 120.00 Abilify 5% * 600.00 600.00 600.00 600.00 600.00 600.00 600.00 600.00 Celebrex 5% * 600.00 600.00 600.00 600.00 600.00 600.00 600.00 600.00 Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 11 of 18 Appendix A: Items of Compensation for Amber Roberts Page 2 of 9 Lump Sum Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 2014 2015 2016 2017 2018 2019 2020 2021 Neurontin 5% * 120.00 120.00 120.00 120.00 120.00 120.00 120.00 120.00 Robaxin 5% * 120.00 120.00 120.00 120.00 120.00 120.00 120.00 120.00 Oxycodone 5% * 120.00 120.00 120.00 120.00 120.00 120.00 120.00 120.00 Zoloft 5% * 120.00 120.00 120.00 120.00 120.00 120.00 120.00 120.00 Ambien 5% * 120.00 120.00 120.00 120.00 120.00 120.00 120.00 120.00 Ditropan 5% * 120.00 120.00 120.00 120.00 120.00 120.00 120.00 120.00 Gentamycin 5% * 60.00 Prilosec OTC 4% 165.60 165.60 165.60 165.60 165.60 165.60 165.60 165.60 Colace 4% 68.40 68.40 68.40 68.40 68.40 68.40 68.40 68.40 Senokot 4% 90.00 90.00 90.00 90.00 90.00 90.00 90.00 90.00 Vit D 4% 43.20 43.20 43.20 43.20 43.20 43.20 43.20 43.20 Ferrous Sulfate 4% 14.40 14.40 14.40 14.40 14.40 14.40 14.40 14.40 OT/ PT 4% 7,011.90 7,011.90 7,011.90 7,011.90 Driving Eval 4% * WC Eval 4% * OT/PT Eval 4% * Case Mngt 4% 12,000.00 12,000.00 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 Counseling 4% * Home Mods 4% 105,650.00 Slings 4% * Shower Bench 4% * Adj Bed 4% 2,799.00 Sliding Board 4% * Portable Ramp 4% * FES Bike 4% 15,750.00 15,750.00 Manual WC 4% 4,800.00 Smart Drive Assist 4% 8,500.00 WC Maint 4% 665.00 665.00 665.00 665.00 665.00 665.00 665.00 665.00 Roho Cushion 4% * Dressing Stick 4% 11.99 1.71 1.71 1.71 1.71 1.71 1.71 1.71 Urinary Cath 12 FR 4% * Urinary Cath 14 FR 4% * Surgilube 4% * Betadine Wipes 4% * Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 12 of 18 Appendix A: Items of Compensation for Amber Roberts Page 3 of 9 Lump Sum Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 2014 2015 2016 2017 2018 2019 2020 2021 Gloves 4% 150.96 150.96 150.96 150.96 150.96 150.96 150.96 150.96 Adult Diapers 4% 792.00 792.00 792.00 792.00 792.00 792.00 792.00 792.00 Chux 4% 345.60 345.60 345.60 345.60 345.60 345.60 345.60 345.60 Mattress Protector 4% 44.46 44.46 44.46 44.46 44.46 44.46 44.46 44.46 Protein Supp 4% 864.00 864.00 864.00 864.00 864.00 864.00 864.00 864.00 Disp Washcloths 4% 56.00 56.00 56.00 56.00 56.00 56.00 56.00 56.00 Medical ID Bracelet 4% 35.00 11.67 11.67 11.67 11.67 11.67 11.67 11.67 Skilled Nurse Visit 4% * Home Health Aide 4% 110,960.00 31,616.00 31,616.00 31,616.00 31,616.00 31,616.00 31,616.00 31,616.00 Trust Seed/Assisted Living 4% 274,155.00 Mileage: Physician Apts 4% 148.05 45.12 45.12 45.12 45.12 45.12 45.12 45.12 WC Access Van 4% 28,092.50 Hand Controls 4% 1,400.00 1,400.00 Van Maint 4% 225.00 225.00 225.00 225.00 225.00 225.00 225.00 225.00 Road Service 4% 102.00 102.00 102.00 102.00 102.00 102.00 102.00 102.00 Lost Future Earnings 820,286.73 Pain and Suffering 250,000.00 Past Unreimbursable Expenses 4,789.14 Kentucky Medicaid Lien 15,553.11 WellCare Medicaid Lien 3,101.91 Annual Totals 1,572,636.63 169,518.70 54,268.70 55,977.90 48,966.00 50,366.00 48,966.00 64,716.00 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 Bank of the Bluegrass & Trust Company for Yr 1 life care expenses ($204,750.74) and trust seed funds ($274,155.00): $478,905.74. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for lost earnings ($820,286.73), pain and suffering ($250,000.00), and past unreimbursable expenses ($4,789.14): $1,075,075.87. As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and Kentucky Medicaid Recovery Unit, as reimbursement for the Commonwealth's Medicaid lien: $15,553.11. As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and First Recovery Group LLC, as reimbursement for the WellCare Medicaid lien: $3,101.91. 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. Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 13 of 18 Appendix A: Items of Compensation for Amber Roberts Page 4 of 9 Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * Years 9-10 Year 11 Years 12-14 Year 15 Year 16 Years 17-20 Year 21 Year 22 2022-2023 2024 2025-2027 2028 2029 2030-2033 2034 2035 United Healthcare Choice Plus Premium 5% United Healthcare Choice Plus Deductible 5% United Healthcare Choice Plus MOP 5% Anthem Gold Direct Premium 5% 2,474.88 2,474.88 2,474.88 2,474.88 Anthem Gold Direct Deductible 5% 750.00 750.00 750.00 750.00 Anthem Gold Direct MOP 5% 6,000.00 6,000.00 6,000.00 6,000.00 Medicare Part B Premium 5% 1,258.80 1,258.80 1,258.80 1,258.80 Medicare Part B Deductible 5% 147.00 147.00 147.00 147.00 Medicare Advantage Premium 5% 756.00 756.00 756.00 756.00 Medicare Advantage MOP 5% 6,500.00 6,500.00 6,500.00 6,500.00 Medicare Adv Rx Deductible 5% 100.00 100.00 100.00 100.00 Primary Care 5% * Urologist 5% * Urology Surgery 5% * PMR Physician 5% * Orthopedic Surgery 5% * Wound Physician 5% * ER 5% * Genito-Urinary Surger & Training 5% * Cystoscopy 5% * Urodynamic Testing 5% * Cystoscopy 5% * Renal Function Studies 5% * Cystatin C 5% * Urinalysis 5% * Urine Culture 5% * Venipuncture 5% * Spine X-rays 5% * Macrodantin 5% * 120.00 120.00 120.00 120.00 Abilify 5% * 600.00 600.00 600.00 600.00 Celebrex 5% * 600.00 600.00 600.00 600.00 Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 14 of 18 Appendix A: Items of Compensation for Amber Roberts Page 5 of 9 Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * Years 9-10 Year 11 Years 12-14 Year 15 Year 16 Years 17-20 Year 21 Year 22 2022-2023 2024 2025-2027 2028 2029 2030-2033 2034 2035 Neurontin 5% * 120.00 120.00 120.00 120.00 Robaxin 5% * 120.00 120.00 120.00 120.00 Oxycodone 5% * 120.00 120.00 120.00 120.00 Zoloft 5% * 120.00 120.00 120.00 120.00 Ambien 5% * 120.00 120.00 120.00 120.00 Ditropan 5% * 120.00 120.00 120.00 120.00 Gentamycin 5% * Prilosec OTC 4% 165.60 165.60 165.60 165.60 Colace 4% 68.40 68.40 68.40 68.40 Senokot 4% 90.00 90.00 90.00 90.00 Vit D 4% 43.20 43.20 43.20 43.20 Ferrous Sulfate 4% 14.40 14.40 14.40 14.40 OT/ PT 4% Driving Eval 4% * WC Eval 4% * OT/PT Eval 4% * 240.00 120.00 120.00 120.00 Case Mngt 4% 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 Counseling 4% * Home Mods 4% Slings 4% * Shower Bench 4% * 215.00 71.67 71.67 71.67 Adj Bed 4% 2,799.00 2,799.00 279.90 Sliding Board 4% * Portable Ramp 4% * 205.00 13.67 13.67 13.67 FES Bike 4% 15,750.00 15,750.00 Manual WC 4% Smart Drive Assist 4% WC Maint 4% 665.00 665.00 665.00 665.00 665.00 665.00 665.00 665.00 Roho Cushion 4% * Dressing Stick 4% 1.71 1.71 1.71 1.71 1.71 1.71 1.71 1.71 Urinary Cath 12 FR 4% * Urinary Cath 14 FR 4% * Surgilube 4% * Betadine Wipes 4% * Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 15 of 18 Appendix A: Items of Compensation for Amber Roberts Page 6 of 9 Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * Years 9-10 Year 11 Years 12-14 Year 15 Year 16 Years 17-20 Year 21 Year 22 2022-2023 2024 2025-2027 2028 2029 2030-2033 2034 2035 Gloves 4% 150.96 150.96 150.96 150.96 150.96 150.96 150.96 150.96 Adult Diapers 4% 792.00 792.00 792.00 792.00 792.00 792.00 792.00 792.00 Chux 4% 345.60 345.60 345.60 345.60 345.60 345.60 345.60 345.60 Mattress Protector 4% 44.46 44.46 44.46 44.46 44.46 44.46 44.46 44.46 Protein Supp 4% 864.00 864.00 864.00 864.00 864.00 864.00 864.00 864.00 Disp Washcloths 4% 56.00 56.00 56.00 56.00 56.00 56.00 56.00 56.00 Medical ID Bracelet 4% 11.67 11.67 11.67 11.67 11.67 11.67 11.67 11.67 Skilled Nurse Visit 4% * Home Health Aide 4% 31,616.00 31,616.00 31,616.00 31,616.00 31,616.00 31,616.00 31,616.00 31,616.00 Trust Seed/Assisted Living 4% Mileage: Physician Apts 4% 45.12 45.12 45.12 45.12 45.12 45.12 45.12 45.12 WC Access Van 4% 28,092.50 28,092.50 Hand Controls 4% 1,400.00 1,400.00 1,400.00 Van Maint 4% 225.00 225.00 225.00 225.00 225.00 225.00 225.00 225.00 Road Service 4% 102.00 102.00 102.00 102.00 102.00 102.00 102.00 102.00 Lost Future Earnings Pain and Suffering Past Unreimbursable Expenses Kentucky Medicaid Lien WellCare Medicaid Lien Annual Totals 48,966.00 81,257.50 48,966.00 64,716.00 48,141.32 46,286.66 78,578.16 62,316.56 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 Bank of the Bluegrass & Trust Company for Yr 1 life care expenses ($204,750.74) and trust seed funds ($274,155.00): $478,905.74. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for lost earnings ($820,286.73), pain and suffering ($250,000.00), and past unreimbursable expenses ($4,789.14): $1,075,075.87. As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and Kentucky Medicaid Recovery Unit, as reimbursement for the Commonwealth's Medicaid lien: $15,553.11. As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and First Recovery Group LLC, as reimbursement for the WellCare Medicaid lien: $3,101.91. 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. Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 16 of 18 Appendix A: Items of Compensation for Amber Roberts Page 7 of 9 Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * Years 23-25 Year 26 Years 27-30 Year 31 Years 32-35 Year 36 Years 37-43 Years 44-Life 2036-2038 2039 2040-2043 2044 2045-2048 2049 2050-2056 2057-Life United Healthcare Choice Plus Premium 5% United Healthcare Choice Plus Deductible 5% United Healthcare Choice Plus MOP 5% Anthem Gold Direct Premium 5% Anthem Gold Direct Deductible 5% Anthem Gold Direct MOP 5% Medicare Part B Premium 5% 1,258.80 1,258.80 1,258.80 1,258.80 1,258.80 1,258.80 1,258.80 1,258.80 Medicare Part B Deductible 5% 147.00 147.00 147.00 147.00 147.00 147.00 147.00 147.00 Medicare Advantage Premium 5% 756.00 756.00 756.00 756.00 756.00 756.00 756.00 756.00 Medicare Advantage MOP 5% 6,500.00 6,500.00 6,500.00 6,500.00 6,500.00 6,500.00 6,500.00 6,500.00 Medicare Adv Rx Deductible 5% 100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00 Primary Care 5% * Urologist 5% * Urology Surgery 5% * PMR Physician 5% * Orthopedic Surgery 5% * Wound Physician 5% * ER 5% * Genito-Urinary Surger & Training 5% * Cystoscopy 5% * Urodynamic Testing 5% * Cystoscopy 5% * Renal Function Studies 5% * Cystatin C 5% * Urinalysis 5% * Urine Culture 5% * Venipuncture 5% * Spine X-rays 5% * Macrodantin 5% * Abilify 5% * Celebrex 5% * Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 17 of 18 Appendix A: Items of Compensation for Amber Roberts Page 8 of 9 Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * Years 23-25 Year 26 Years 27-30 Year 31 Years 32-35 Year 36 Years 37-43 Years 44-Life 2036-2038 2039 2040-2043 2044 2045-2048 2049 2050-2056 2057-Life Neurontin 5% * Robaxin 5% * Oxycodone 5% * Zoloft 5% * Ambien 5% * Ditropan 5% * Gentamycin 5% * Prilosec OTC 4% Colace 4% Senokot 4% Vit D 4% Ferrous Sulfate 4% OT/ PT 4% Driving Eval 4% * WC Eval 4% * OT/PT Eval 4% * 120.00 120.00 120.00 120.00 120.00 120.00 120.00 120.00 Case Mngt 4% 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 2,400.00 Counseling 4% * Home Mods 4% Slings 4% * Shower Bench 4% * 71.67 71.67 71.67 71.67 71.67 71.67 71.67 71.67 Adj Bed 4% 279.90 279.90 279.90 279.90 279.90 279.90 279.90 279.90 Sliding Board 4% * Portable Ramp 4% * 13.67 13.67 13.67 13.67 13.67 13.67 13.67 13.67 FES Bike 4% 2,250.00 2,250.00 2,250.00 2,250.00 2,250.00 2,250.00 2,250.00 Manual WC 4% Smart Drive Assist 4% WC Maint 4% 665.00 665.00 665.00 665.00 665.00 665.00 665.00 665.00 Roho Cushion 4% * Dressing Stick 4% 1.71 1.71 1.71 1.71 1.71 1.71 1.71 1.71 Urinary Cath 12 FR 4% * Urinary Cath 14 FR 4% * Surgilube 4% * Betadine Wipes 4% * Case 1:09-vv-00427-UNJ Document 107 Filed 10/23/14 Page 18 of 18 Appendix A: Items of Compensation for Amber Roberts Page 9 of 9 Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * Years 23-25 Year 26 Years 27-30 Year 31 Years 32-35 Year 36 Years 37-43 Years 44-Life 2036-2038 2039 2040-2043 2044 2045-2048 2049 2050-2056 2057-Life Gloves 4% 150.96 150.96 150.96 150.96 150.96 150.96 150.96 150.96 Adult Diapers 4% 792.00 792.00 792.00 792.00 792.00 792.00 792.00 792.00 Chux 4% 345.60 345.60 345.60 345.60 345.60 345.60 345.60 345.60 Mattress Protector 4% 44.46 44.46 44.46 44.46 44.46 44.46 44.46 44.46 Protein Supp 4% 864.00 864.00 864.00 864.00 864.00 864.00 864.00 864.00 Disp Washcloths 4% 56.00 56.00 56.00 56.00 56.00 56.00 56.00 56.00 Medical ID Bracelet 4% 11.67 11.67 11.67 11.67 11.67 11.67 11.67 11.67 Skilled Nurse Visit 4% * Home Health Aide 4% 31,616.00 31,616.00 31,616.00 31,616.00 31,616.00 31,616.00 Trust Seed/Assisted Living 4% - 39,165.00 Mileage: Physician Apts 4% 45.12 45.12 45.12 45.12 45.12 45.12 45.12 45.12 WC Access Van 4% 28,092.50 Hand Controls 4% 1,400.00 1,400.00 1,400.00 Van Maint 4% 225.00 225.00 225.00 225.00 225.00 225.00 Road Service 4% 102.00 102.00 102.00 102.00 102.00 102.00 Lost Future Earnings Pain and Suffering Past Unreimbursable Expenses Kentucky Medicaid Lien WellCare Medicaid Lien Annual Totals 48,816.56 50,216.56 48,816.56 78,309.06 48,816.56 50,216.56 16,873.56 53,788.56 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 Bank of the Bluegrass & Trust Company for Yr 1 life care expenses ($204,750.74) and trust seed funds ($274,155.00): $478,905.74. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for lost earnings ($820,286.73), pain and suffering ($250,000.00), and past unreimbursable expenses ($4,789.14): $1,075,075.87. As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and Kentucky Medicaid Recovery Unit, as reimbursement for the Commonwealth's Medicaid lien: $15,553.11. As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and First Recovery Group LLC, as reimbursement for the WellCare Medicaid lien: $3,101.91. 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. ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_09-vv-00427-1 Date issued/filed: 2015-03-20 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 02/25/2015) regarding 110 DECISION Fees Stipulation Signed by Special Master Brian H. Corcoran. (ag) Copy to parties. -------------------------------------------------------------------------------- Case 1:09-vv-00427-UNJ Document 113 Filed 03/20/15 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 09-427V (Not to be published) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * AMBER ROBERTS, * * Filed: February 25, 2015 Petitioner, * * Decision by Stipulation; Attorney’s v. * Fees & Costs * SECRETARY OF HEALTH AND * HUMAN SERVICES , * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Thomas Kelly Herren, Lexington, KY, for Petitioner Ann Donohue Martin, Washington, DC, for Respondent ATTORNEY’S FEES AND COSTS DECISION1 On July 1, 2009, Amber Roberts filed a petition seeking compensation under the National Vaccine Injury Compensation Program (Athe Vaccine Program@). On October 1, 2014, the Respondent filed a proffer detailing an amount to be awarded to Petitioner. I subsequently issued a decision finding Respondent’s proffer to be reasonable and granting Petitioner the award outlined by the proffer. On February 23, 2015, Petitioner filed a Motion for Attorney Fees. After engaging in informal discussions, the Parties filed a stipulation for fees on February 25, 2015. The parties have stipulated that Petitioner’s counsel should receive a lump sum of $56,000.00, in the form of 1 Because this decision contains a reasoned explanation for my action in this case, I will 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)). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the posted decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has 14 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.) Case 1:09-vv-00427-UNJ Document 113 Filed 03/20/15 Page 2 of 2 a check payable to Petitioner and Petitioner’s counsel. This amount represents a sum to which respondent does not object. In addition, and in compliance with General Order #9, Petitioner has represented that she did incur any reimbursable costs in proceeding on this petition. I approve the requested amount for attorney’s fees and costs as reasonable. Accordingly, an award should be made in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Thomas K. Herren, Esq. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.2 IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Special Master 2 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review.