VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_11-vv-00216
Package ID: USCOURTS-cofc-1_11-vv-00216
Petitioner: Jeffrey David Simmons
Filed: 2015-11-06
Decided: 2019-06-24
Vaccine: Tdap
Vaccination date: 2008-04-11
Condition: anaphylactoid response; immune problems; Addison’s-like disease
Outcome: compensated
Award amount USD: 1631128

AI-assisted case summary:
Jeffrey David Simmons, a 38-year-old adult, filed a petition on April 7, 2011, alleging that the Tdap vaccine he received on April 11, 2008, caused him anaphylaxis, immune dysregulation, and autoimmune disease leading to Addison's disease. The respondent is the Secretary of Health and Human Services. Petitioner's counsel was Clifford J. Shoemaker, and respondent's counsel was Justine E. Walters for the entitlement ruling, and later Lynn C. Schlie for the damages decision. Special Master Laura D. Millman issued the rulings.

Petitioner's medical history included childhood issues with digestion, asthma, and sensitivities to gluten and casein. Following the Tdap vaccination, he experienced an immediate reaction including redness, swelling, fever, chills, muscle pain, headache, hives, and chest tightness. Over the subsequent months, he developed persistent symptoms such as flank pain, headaches, fatigue, diarrhea, skin darkening, and joint pain. He was eventually diagnosed with adrenal insufficiency, requiring hormone replacement therapy, described as Addison's-like disease. Petitioner's wife testified about his symptoms and his improved health when avoiding gluten and dairy. Petitioner testified about his childhood health issues and how avoiding gluten and dairy improved his condition. He stated that after the Tdap vaccine, his symptoms worsened significantly, leading to his inability to continue working as an insurance agent and his dismissal from his partnership in October 2009.

Petitioner's expert, immunologist Dr. Joseph A. Bellanti, opined that the Tdap vaccine, containing casein to which petitioner was sensitive, triggered an immunologically-mediated disease. He believed the vaccine exacerbated petitioner's genetic susceptibility to allergies and set in motion a cascade of immune-mediated tissue-injuring reactions affecting the neurologic, endocrine, and immunologic systems, leading to his chronic symptoms and adrenal insufficiency. Respondent's expert, immunologist Dr. Arnold I. Levinson, agreed that petitioner had a reaction to the Tdap vaccine, which he termed a hypersensitivity reaction, but opined that the reaction did not last beyond six months and that petitioner's Addison's disease was not related to the vaccine reaction. He also stated he did not know how long the reaction lasted or the basis for petitioner's persisting symptoms.

In a ruling on entitlement dated October 30, 2015, Special Master Millman found that petitioner had a vaccine reaction that lasted more than six months and that his Addison's disease was part of that sequelae. The Special Master accepted Dr. Bellanti's theory that the Tdap vaccine's casein component caused further sensitization, leading to adrenal insufficiency, and concluded that petitioner was entitled to compensation. The Special Master noted that the field of vaccine causation often lacks complete and direct proof of biological mechanisms and that close calls should be resolved in favor of petitioners.

A subsequent decision on damages was issued on June 24, 2019. The parties engaged in resolving damages, with economists Dr. Robert W. Cook for the petitioner and Dr. Patrick F. Kennedy for the respondent providing conflicting reports on lost wages. The Special Master addressed disputes regarding lost wages, ownership income, and the present value methodology, largely ruling in favor of the respondent on the calculation of W-2 income and present value methodology due to insufficient supporting documentation for petitioner's claims. However, the Special Master found an award for petitioner's loss of ownership income reasonable. The Special Master also denied petitioner's claim for past health insurance premiums due to insufficient proof. The Special Master awarded compensation for projected life care expenses, wage loss, loss of ownership income, pain and suffering, and reimbursement of Medicaid liens.

The total award included a lump sum payment of $1,631,128.03 for first-year life care expenses, lost wages, lost ownership income, pain and suffering, and past unreimbursable expenses. Additionally, lump sum payments of $252.77 and $465.36 were made for Medicaid liens. Future compensation for life care items was to be provided through an annuity. The total award, including the lump sum and the value of the annuity, was over $1.6 million.

Theory of causation field:
Petitioner Jeffrey David Simmons, age 38, received a Tdap vaccine on April 11, 2008. He alleged the vaccine caused an anaphylactoid response, immune dysregulation, and Addison's-like disease. Petitioner's expert, Dr. Joseph A. Bellanti, opined that the Tdap vaccine, containing casein to which petitioner had a known sensitivity, triggered an immunologically-mediated disease, exacerbating a genetic susceptibility and leading to a cascade of immune reactions affecting multiple organ systems, including the endocrine system, resulting in adrenal insufficiency. Respondent's expert, Dr. Arnold I. Levinson, agreed petitioner had a hypersensitivity reaction to the Tdap vaccine but believed it lasted less than six months and was unrelated to the Addison's disease. Special Master Laura D. Millman ruled that the Tdap vaccine caused petitioner's entire immunologic reaction, including the adrenal insufficiency, finding entitlement to compensation. The case proceeded to damages, resulting in an award of $1,631,128.03 as a lump sum, plus annuity payments for future costs, totaling over $1.6 million, issued on June 24, 2019. Petitioner was represented by Clifford J. Shoemaker and respondent by Lynn C. Schlie.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_11-vv-00216-0
Date issued/filed: 2015-11-06
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 10/30/2015) regarding 95 Ruling on Entitlement Signed by Special Master Laura D Millman. (tlf) Copy to parties.
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Case 1:11-vv-00216-UNJ Document 98 Filed 11/06/15 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-216V
Initially Filed: October 30, 2015
Reissued redacted: November 5, 2015
To be Published
*************************************
JEFFREY DAVID SIMMONS, *
*
Petitioner, *
*
v. * Tdap vaccine; anaphylactoid response;
* immune problems; Addison’s-like disease
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Clifford J. Shoemaker, Vienna, VA, for petitioner.
Justine E. Walters, Washington, DC, for respondent.
MILLMAN, Special Master
RULING ON ENTITLEMENT1
On April 7, 2011, petitioner filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that the Tdap (“tetanus toxoid-diphtheria-acellular
pertussis”) vaccine he received on April 11, 2008 caused him anaphylaxis, immune
dysregulation, and autoimmune disease leading to Addison’s disease.2 Pet., at ¶ 107.
1 Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the public
unless they contain trade secrets or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted
invasion of privacy. When such a decision is filed, petitioners have 14 days to identify and move to
redact such information prior to the document’s disclosure. If the special master, upon review, agrees that
the identified material fits within the categories listed above, the special master shall redact such material
from public access. On November 5, 2015, petitioner moved to redact the ruling on entitlement. The
undersigned grants petitioner’s motion.
2 Addison’s disease is “a chronic type of adrenocortical insufficiency, characterized by hypotension,
weight loss, anorexia, weakness, and a bronzelike hyperpigmentation of the skin. It is due to
tuberculosis- or autoimmune-induced destruction of the adrenal cortex, which results in deficiency of
aldosterone and cortisol and is fatal in the absence of replacement therapy.” Dorland’s Illustrated
Medical Dictionary 528 (32d ed. 2012) (hereinafter, “Dorland’s”).

Case 1:11-vv-00216-UNJ Document 98 Filed 11/06/15 Page 2 of 12
The undersigned held a hearing on July 9 and 10, 2015, during which respondent’s
expert, Dr. Arnold I. Levinson, an immunologist, agreed with petitioner’s expert, Dr. Joseph A.
Bellanti, also an immunologist, that petitioner had a vaccine reaction. However, Dr. Levinson
did not know how long petitioner’s reaction lasted. He opined that petitioner’s Addison’s
disease was not related to his vaccine reaction.
Thus, this decision starts with the undisputed opinion that petitioner had a vaccine
reaction, discusses further whether it lasted beyond the statutorily-required six months, and
whether petitioner’s Addison’s or Addison’s-like disease is a sequelae of his vaccine reaction.
The undersigned holds that petitioner still has residua of his vaccine reaction, satisfying the
statutory requirement of more than six months of sequelae, and that his Addison’s disease is part
of that sequelae.
FACTS
Pre-vaccination records
Petitioner was born on August 5, 1969. According to his mother’s affidavit, he could not
digest milk as a baby. Ex. 42, at 1. Petitioner received his first DPT at two months of age,
following which he would be fussy for days, develop body rashes and hives, have swelling at the
injection site, high fevers, and enlarged lymph nodes. Id. at 2. When he was seven months old,
petitioner had trouble breathing and developed daily asthma attacks. Id. Petitioner avoided
drinking milk as a child because he experienced cramping and nausea. Id.
On November 2, 2006, Dr. Kenneth D. Fine of EnteroLab wrote a report stating that a
stool sample from petitioner showed that petitioner had sensitivity to gluten and casein (cow’s
milk) in the form of IgA antibody. Med. recs. Ex. 2, at 75 (also at 105 and Ex. 6, at 4).
Post-vaccination records
On Friday, April 11, 2008, petitioner saw his personal care physician Dr. Ross Bethel for
a medical examination. Med. recs. Ex. 3, at 11. Petitioner had a history of headaches, asthma,
gluten sensitivity, and increased blood pressure, but not hypertension. Id. Petitioner received the
Tdap vaccine at this examination. Id.
Three days later, on Monday, April 14, 2008, petitioner returned to Dr. Bethel,
complaining of mild redness of his left deltoid without tenderness. Id. at 9. Petitioner also had
left axillary (armpit) adenopathy with tenderness, and mild swelling in the left axilla on the chest
side. Id. Dr. Bethel noted that petitioner had a reaction to his recent pertussis vaccination: “He
is having a vigorous immune response to the pertussis component of the Tdap.” Id. Dr. Bethel
continues in his record that, on Friday, petitioner received Tdap in his left deltoid. Id. at 8. Over
the weekend, he developed headache, fevers, left axillary pain and swelling, muscle pain in his
deltoid and left pectoral area, and low-grade chills. Id. His noted that his left arm felt funny. Id.
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On June 17, 2008, petitioner saw Dr. Rick D. Gross for a nasopharyngoscopy, which
showed petitioner had reflux and thrush. Med. recs. Ex. 5, at 12.
On September 18, 2008, petitioner returned to Dr. Bethel. Med. recs. Ex. 3, at 6. The
medical records for this visit note that, about five months previously, petitioner received Tdap.
Id. Dr. Bethel writes, “He reacted very poorly to this and we suspect it might be because it
contains some casein. He has known sensitivity to casein and gluten. He developed quite a wide
variety of symptoms. One of them is flank[ ] pain and that has never gone away.” Id. Petitioner
also developed sharp left-sided neck pain. Id. at 7. Nasopharyngoscopy showed he had a “rip
roaring case of Candida.” Id. Petitioner still had left-sided neck pain. Id. Dr. Bethel writes that
he is “wondering whether his immune reaction to the Tdap is somehow contribut[ing] to these
other symptoms he continues having. Concerned about his kidneys because of the flank pain.”
Id. Petitioner had urinary frequency and some urgency going on for some time. Id.
On November 4, 2008, petitioner saw Dr. Richard Wilkinson, a specialist in allergy and
asthma. Med. recs. Ex. 2, at 104. Petitioner told Dr. Wilkinson that he had issues with gluten
and casein sensitivity for much of his life. Id. He received a tetanus vaccination on April 11,
2008. Id. For the next 24 hours, he had symptoms of anaphylaxis without throat closing. Id.
The vaccine had casein in it. Id. Since then, petitioner stated, he had been trying to get better.
Id. He received the vaccination in the left deltoid and the arm was very sore without numbness.
Id. at 103. The day after the vaccination, his axillary lymph node was the size of a grapefruit.
Id. He had fever and chills and felt as if he were going to pass out. Id. He got a bad headache,
hives, and then blisters which itched and were painful. Id. He had hair loss, significant chest
pain, dizziness, vertigo, severe, sharp pain in his throat, fatigue, joint pain, acid reflux, diarrhea
alternating with constipation, puffy eyes, thrush, significant flank pain, pain in the kidney areas,
nocturnal sweats, and sensitivity to cold and heat. Id. at 102-03.
On June 16, 2009, Dr. Wilkinson wrote a letter. It is unclear to whom he wrote it. Id. at
80. He states that, after petitioner’s Tdap in April 2008, petitioner “had many of the classic
symptoms of anaphylaxis except his throat did not close.” Id. Dr. Wilkinson states petitioner
was allergic to dairy and the vaccine had casein in it. Id. He notes petitioner continued to have
symptoms and had ongoing pain over the kidneys. Id. Petitioner had night sweats or felt very
cold, plus he had headaches. Id. Dr. Wilkinson concludes, “This is what appears to me to be a
drug reaction.” Id. He then asks for input from the recipient of the letter. Id.
On November 24, 2009, petitioner saw Dr. Andrew G. Ayars, an allergist, and Dr.
Reynold M. Karr, Jr., an allergist, at the University of Washington Medical Center. Id. at 30.
Dr. Wilkinson asked them to see petitioner regarding a possible adverse reaction to Tdap. Id.
Petitioner stated that he received Tdap in April 2008 and had an episode that evening of
lightheadedness, tingling in his hands and feet, and over the next 24 hours, a rash which was red
and vesicular, with distinct patches on his trunk, scalp, and forehead. Id. He had associated
fever, nausea, and headache. Id. The lightheadedness and tingling in his hands and feet lasted
about two weeks. Id. The rash lasted two to three months and he noted a residual rash in his
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scalp. Id. Since then, he had multiple issues, including throat pain. Id. He took what he called
“acid pills’ and the pain resolved. Id. Petitioner also had a history of chronic diarrhea which
improved with not eating gluten, casein, or soy, but still had episodes of it. Id. Petitioner
complained of fatigue, diffuse pain in his back, arms, and legs, and night sweats. Id. at 31. He
had a past history of asthma. Id. The doctors’ impression was possible adverse reaction to Tdap,
chronic fatigue, chronic diarrhea, chronic backache, arm, and leg pain, and history of throat pain
and weakness. Id. They did not feel that all the symptoms about which petitioner complained
could be related to his Tdap. They stated, “It is possible that the patient had an antibody-
mediated reaction to the vaccination initially, which could have caused his rash, lightheadedness
and overall sense of anxiety at that time, consistent with a possible anaphylactoid type reaction.
It is unlikely, however. We recommend that patient not receive [the sentence is not finished,
presumably the doctors meant petitioner not received further Tdap]. Would recommend
checking tetanus titers if he does require a tetanus booster in the future.” Id. The doctors did not
think petitioner had a rheumatological disorder since he had a normal sedimentation rate and
normal c-reactive protein. Id. They attributed petitioner’s diarrhea to intolerance versus possible
allergy, and recommended he continue to avoid gluten, casein, and soy. Id. at 33.
On December 14, 2009, Dr. Bethel filled out a VAERS (Vaccine Adverse Event
Reporting System) form, stating that petitioner had a reaction two hours after his April 11, 2008
Tdap vaccination, which Dr. Bethel described as an “immune complex reaction” with: enlarged
lymph nodes; difficulty breathing; asthma-like condition; swelling face; generalized urticarial;
swollen eyes; dizziness; pain; feeling unwell; pain in head and chest; ringing in ears; hair loss;
fever; fatigue; diarrhea; pain in bone and muscle; nausea; and migraine. Id. at 55-56. The form
notes an initial report received on April 14, 2009 from petitioner’s wife. It describes a male
patient, with an autoimmune reaction to milk, who received Adacel (Tdap). Id. at 56. Per the
reporter, the patient who had a pre-existing autoimmune reaction to casein suffered severe
permanent damage after receiving Tdap. Id. Petitioner’s wife sent follow-up information on
June 1, 2009. Id.
On October 29, 2010, petitioner saw Dr. Biju Kunhiraman, an endocrinologist, for
evaluation of adrenal insufficiency for which Dr. Wilkinson started petitioner on hydrocortisone.
Id. at 4. Petitioner had fatigue prior to starting hydrocortisone. Id. Petitioner said his
complaints started after he received a tetanus booster shot. Id. Petitioner reported headache,
excessive salt craving, flushing, rash, unusual tanning, food allergy, change in hearing, sleep
difficulty, tearing, loud snoring, palpitations, lightheadedness, abdominal pain, diarrhea, and
joint pain and stiffness. Id.
TESTIMONY
Jennifer Simmons, petitioner’s wife, testified first. Tr. at 8. She and petitioner have been
married since 1994 and have three children, all of whom have allergies, particularly to gluten and
dairy. Id. at 9, 12-30. Petitioner also had allergies, and sensitivity to gluten and dairy. Id. at 10.
When he went off gluten and dairy, his health improved. Id. at 25-26. After petitioner received
the Tdap vaccine in April 2011, he called her from work in the afternoon and said something was
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wrong and he did not feel well. Id. at 35. He came home early and was sweating and in pain.
Id. His left arm (which received the vaccine) was swollen and red, and his armpit was spongy.
Id. at 36. The next day, petitioner had 103 degree temperature. Id. His lymph nodes swelled
and he had hives around his trunk. Id. at 36-37. His chest and throat felt tight. Id. at 37. Ms.
Simmons did some research and discovered there was casamino, a casein derivative, in Tdap
vaccine. Id. at 38. Petitioner had to use an inhaler and had fatigue and a headache. Id. at 41.
On the Tuesday after the vaccination, petitioner had flank pain. Id. Petitioner had acid reflux
and then throat pain. Id. at 45. Petitioner’s skin darkened and his joints were stiff and muscles
painful. Id. at 51. Petitioner also has diarrhea. Id. at 52. In November 2008, Dr. Wilkinson
checked petitioner’s hormones and his cortisol level, which was suppressed. Id. at 56-57. Dr.
Wilkinson prescribed hydrocortisone. Id. Petitioner’s aldosterone level was also low, and Dr.
Wilkinson prescribed that as well. Id. Petitioner improved. Id. Petitioner’s testosterone was
low and Dr. Wilkinson prescribed that, too. Id. at 58. Dr. Wilkinson took petitioner off acid
blockers for his gastroesophageal reflux disease and put him on betaine hydrochloride, which
eliminated the reflux. Id. Petitioner took out a $500,000.00 loan to buy into the partnership at
his employer, which made him a partner in January 2009, but the firm later bought him out. Id.
at 65-66.
Petitioner testified next. Id. at 97. He stated that his health was difficult when he was a
child. Id. at 98. He had asthma, some hip arthritis, chest pains, headaches, and fatigue. Id. at
98-99. He went from being a chemistry high school teacher, to working in real estate, to selling
insurance at his last employer. Id. at 99-100. In 2006, when he went on a gluten-free diet, his
chest pain and hip arthritis improved. Id. at 102. When he went on a dairy-free diet, the bumps
on his arms and his headaches went away. Id. at 104. Any time he drank milk, he would get a
knot in his stomach. Id. at 105. In 2007, he had energy. Id. His average work day in 2007 was
10-11 hours if he was traveling. Id. at 108. After he received the Tdap vaccine in April 2008,
his arm became very sore and red around the injection site. Id. at 111. He had some tingling in
his arm. Id. He went back to his office and did not feel right, as if he were coming down with a
cold or the flu. Id. He felt chills, called his wife, and went home early. Id. His heart was racing
and he started sweating. Id. His armpit lymph node started swelling and became tender. Id. at
112. By the next day, the swelling was the size of a grapefruit. Id. He also had a headache. Id.
He started getting asthma attacks. Id. at 113. He noticed the flank pain a two or three days after
the vaccination. Id. at 114. Both his kidneys hurt. Id. at 115. He also had hives and fever. Id.
at 120. He still has migraine headaches. Id. at 121. Dr. Wilkinson diagnosed petitioner with
adrenal deficiency. Id. at 142. Petitioner is on full hormone replacement therapy for Addison’s.
Id. at 142-43. The diarrhea and the hives made it difficult for him to travel. Id. at 150. In
addition to the hormone replacement to treat his adrenal insufficiency, petitioner is supposed to
have a low-stress lifestyle. Id. at 151. He stated that working as an insurance agent was not low
stress. Id. He would be in the bathroom at work because of the diarrhea and miss meetings and
he would have to leave clients early. Id. His partners, although patient, told him in October
2009 that they were going to divest and they voted him out. Id. at 151-52. Petitioner left his
employer on December 31, 2009 and has not worked since. Id. at 152, 137.
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Petitioner’s expert, Dr. Joseph A. Bellanti, an immunologist, testified next.3 Id. at 200.
His opinion is that petitioner has an immunologically-mediated disease, which a genetic
susceptibility to allergies triggered and the Tdap vaccination exacerbated on April 11, 2008. Id.
at 203. Because the Tdap vaccine contained casein (to which petitioner is allergic), it set off a
series of immune-mediated tissue-injuring reactions affecting mainly three organ systems: the
neurologic system, the endocrine system, and the immunologic system. Id. Each of those three
major systems interacts and is interdependent and interrelated. Id. Starting in petitioner’s
childhood, he suffered from several asthmatic attacks, arthritic symptoms, and rashes. Id. When
petitioner went off gluten and casein, he improved, but when he was exposed to them, he
worsened. Id. at 204-05. The immune system consists of the innate (nonspecific immunity) and
the adaptive immunity (specific immunity). Id. at 208. Five classes of immunoglobulin—IgG,
IgA, IgM, IgD, and IgE—can be responsible for injury through abnormalities of the innate
system as well as the adaptive system. Id. at 209. IgE triggers some allergies while IgG triggers
injury in the innate immune system. Id. at 211. Petitioner is not sensitive to IgE antibodies,
while non-IgE mechanisms triggers his allergy and asthma. Id. Petitioner suffers from celiac
disease-like symptoms because of sensitivity to casein (milk). Id. at 214. He has IgA sensitivity
which can manifest as celiac disease.4 Id.
Dr. Bellanti testified that petitioner’s sensitivity to casein was demonstrated by the fact
that when petitioner went off dairy his symptoms improved markedly, but when he thought he
was drinking coconut milk, which was actually dairy, his symptoms returned. Id. at 215. After
the Tdap vaccination, petitioner did not have full-blown anaphylaxis, but he did have many
components. Id. at 218. He had hives with skin lesions. Id. Petitioner also had swollen lymph
nodes, wheezing, and diarrhea, which are all manifestations of the allergic reaction. Id. at 219.
Dr. Bellanti explained that when someone has a serious anaphylactic reaction, he can produce
neoantigens that are modified, i.e., the vaccine sensitization had the effect of setting everything
else petitioner experienced in motion. Id. at 220-21. Dr. Bellanti believe that the Tdap set in
motion a disarray of petitioner’s immune system, including some immune dysregulation which
perpetuated his propensity to autoimmune disease. Id. at 221. The immune system is a system
of balance. Id. at 222. When a foreign substance sets off pro-inflammatory cytokines, in an
allergic and autoimmune individual, there are too little T regulatory cells to balance the
inflammatory cytokines, resulting in too much inflammation. Id. at 222.
Dr. Bellanti said that petitioner’s post-Tdap severe headache and stiff neck were
3 Dr. Bellanti is Director of the International Center for Interdisciplinary Studies of Immunology at
Georgetown University, among other posts. Ex. 19, at 1. He is board-certified in allergy and
immunology. Id. at 4. He is past president of the American College of Allergy and Immunology. Id. at
6. He is on the editorial board of Annals of Allergy, Asthma & Immunology. Id. He authored or co-
authored 234 articles. Id. at 12-26. He wrote or edited 59 books or articles, including the latest edition of
his text Immunology IV. Clinical Applications in Health and Disease (2012). Id. at 38-41.
4 Dr. Bellanti referred to Exhibit 35, Bovine milk intolerance in celiac disease is related to IgA reactivity
to α- and β-caseins, by F. Cabrera-Chávez, et al., 25 Nutrition 715-16 (2009), for the proposition that
cow’s milk can induce celiac disease-like symptoms due to IgA reactivity in some patients. Id. at 715.
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examples of his central nervous system being involved in his reaction. Id. at 223-24. Allergy to
casein is an example of immunologic injury. Id. at 224. Petitioner’s Addison’s disease is an
example of endocrine injury. Id. Dr. Bellanti said that the reason petitioner did not have this
panoply of injured systems before the Tdap vaccine was the intensity of the immune activation
was not severe enough pre-vaccination to involve the other organs. Id. He noted that injecting
someone is different than exposing someone to a substance by inhalation or ingestion. Id. at 225.
The internal system includes the spleen, lymph nodes, and thymus. Id. The external system,
called the mucosal system, includes the linings of the gastrointestinal tract and the respiratory
tract. Id. Both the internal and external systems make up the immune system, but exposure to an
antigen from an injection may be more intense. Id. Petitioner’s grapefruit-sized lymph node
after vaccination and, later, swollen cervical lymph nodes on the left were symptomatic of his
reaction. Id. Adjuvants in the vaccine would augment the intensity of the immune stimulation.
Id. at 226.
Dr. Bellanti said that petitioner’s sensitization plus exposure to casein-containing Tdap
would result in an anamnestic response because his B cells and T cells would expand rapidly
following re-exposure, contributing to the intensity. Id. at 229. Dr. Bellanti recalled that
petitioner’s mother stated in her affidavit that petitioner reacted to his exposure as a baby to DPT
vaccinations with high fever and fussiness. Id. at 230. Petitioner was probably sensitized to the
casein in those vaccines as well as his repeated exposures to casein in common foods and
toothpastes that kept his sensitivity at a smoldering level. Id. When he received the Tdap
vaccine, that intense stimulation produced a tremendous anamnestic response. Id.
In conclusion, Dr. Bellanti testified that the Tdap vaccine petitioner received on April 11,
2008 caused petitioner chronic immune-mediated problems affecting multiple organs, including
the skin, respiratory tract, and several other organs. Id. at 231. Medical literature supports a
causal relationship between non-IgE forms of food allergy and immune system aberrations,
resulting in tissue injury such a petitioner’s chronic disease manifestations. Id. Petitioner had a
known sensitivity to casein, resulting in a cascade of immune-mediated symptoms following
vaccination. Id. The temporal sequence is appropriate for causation, resulting in serious clinical
symptoms which persist. Id. at 232. Petitioner has both sensitivity and non-IgE allergy to
casein. Id. at 235. Addison’s has been associated with celiac (an autoimmune disease) and
petitioner’s celiac-type sensitivity made him vulnerable to Addison’s because of the Tdap
component of casein. Id. at 277, 278.
Respondent’s expert, Dr. Arnold I. Levinson, an immunologist, testified next.5 Id. at
303. Dr. Levinson explained that Tdap contains casein. Id. He does not like to use the word
“allergic” for the same reason Dr. Bellanti does not like using it: there are multiple
5 Dr. Levinson is Emeritus Professor of Medicine and Neurology at the University of Pennsylvania. Ex.
B, at 2. He is board-certified in Allergy and Clinical Immunology. Id. He has been on the Department of
Health and Human Services Vaccine Injury Panel since 2009. Id. at 5. He authored or co-authored 111
research publications. Id. at 9-17. He authored or co-authored 42 editorials, chapters, and invited
reviews. Id. at 18-20. He and three others have a patent for “Vaccines for suppressing IgE-mediated
allergic disease and methods for using the same.” U.S. Patent No. 10/518,701, 09/01/2005. Id. at 21.
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hypersensitivity immune-mediated mechanisms that can result in an adverse reaction to an
antigen. Id. at 312. There are both IgE and non-IgE mechanisms that give rise to reactions. Id.
at 314. Dr. Levinson’s opinion is that petitioner had a reaction to the Tdap vaccine, but that his
reaction did not last more than six months. Id. at 320. However, he also testified that he does
not know how long petitioner’s reaction lasted. Id. at 322. Dr. Levinson said that after
petitioner’s initial reaction, petitioner had symptoms of adrenal insufficiency, but he does not
know the basis for petitioner’s persisting symptoms. Id. at 320-21. Multiple immune
mechanisms can mediate an autoimmune reaction as well as an “allergic” reaction. Id. at 323.
Dr. Levinson stated petitioner had a hypersensitivity reaction to the Tdap vaccine. Id. at 328,
380. Dr. Levinson said petitioner’s hypersensitivity reaction involved immune components of
some type but he does not know what they are. Id. at 380. He said someone with sensitivity to
casein could certainly manifest with gastrointestinal disturbances. Id. at 334. Based on
petitioner’s history of being ill when ingesting dairy, and recovering his health when he was off
dairy foods pre-vaccination, Dr. Levinson agreed that petitioner has a sensitivity to casein. Id. at
399. A hypersensitivity reaction is an immune-mediated reaction. Id. at 342. The reason
petitioner’s left armpit swelled after his Tdap vaccination is that the vaccine activated
lymphocytes and mononuclear cells traveling back and forth through the lymphatics and blood in
this area. Id. at 343. To Dr. Levinson, this constitutes an over-enthusiastic response on the part
of the immune system. Id. at 345. He said we do not know the exact molecular basis of that
exuberant response. Id. at 346. He also said that we do not know the mechanism for an adverse
reaction to tetanus vaccine. Id. Dr. Levinson opined that petitioner could have Addison’s
because he has some of the clinical symptoms of Addison’s. Id. at 357-58.
DISCUSSION
To satisfy his burden of proving causation in fact, petitioner must prove by preponderant
evidence: “(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 a proximate temporal relationship between vaccination and injury.’” Althen v. Sec’y
of HHS 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal Circuit quoted its opinion
in Grant v. Secretary of Health and Human Services, 956 F.2d 1144, 1148 (Fed. Cir. 1992):
A persuasive medical theory is demonstrated by “proof of a logical
sequence of cause of and effect showing that the vaccination was
the reason for the injury [,]” the logical sequence being supported
by a “reputable medical or scientific explanation[,]” i.e., “evidence
in the form of scientific studies or expert medical testimony[.]”
418 F.3d at 1278.
Without more, “evidence showing an absence of other causes does not meet petitioners’
affirmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal
association is not sufficient to prove causation in fact. Id. at 1148.
8

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Petitioner must show not only that but for receiving the Tdap vaccine, he would not have
had an anaphylactoid-like episode, followed by continuing immune symptoms, culminating in
Addison’s disease, but also that Tdap was a substantial factor in causing petitioner’s complaints.
Shyface v. Sec’y of HHS 165 F.3d 1344, 1352 (Fed. Cir. 1999).
Petitioner was unable to give a specific biological mechanism explaining how his
immune response to Tdap vaccine led to Addison’s disease, which is autoimmune. But
petitioners do not have the burden of proving a specific biological mechanism in order to prevail
in their cases. As the Federal Circuit stated in Knudsen v. Secretary of Health and Human
Services, 35 F.3d 543 (Fed. Cir. 1994):
[T]o require identification and proof of specific biological mechanisms would be
inconsistent with the purpose and nature of the vaccine compensation program. The
Vaccine Act does not contemplate full blown tort litigation in the Court of Federal
Claims. The Vaccine Act established a federal “compensation program” under
which awards are to be “made to vaccine-injured persons quickly, easily, and with
certainty and generosity.” House Report 99-908, supra, at 3, 1986 U.S.C.C.A.N. at
6344. . . .
The Court of Federal Claims is therefore not to be seen as a vehicle for ascertaining
precisely how and why DTP and other vaccines sometimes destroy the health and lives of
certain children while safely immunizing most others.
35 F.3d at 549.
The Federal Circuit stated in Althen, 418 F.3d at 1280, “While this case involves the
possible link between [tetanus toxoid] vaccination and central nervous system injury, a sequence
hitherto unproven in medicine, 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.” Close calls are to be resolved in favor of petitioners. Capizzano v.
Sec’y of HHS, 440 F.3d 1317, at 1327 (Fed. Cir. 2006); Althen, 418 F.3d at 1280.
In addition, the Federal Circuit in Althen stated: “If the Vaccine Act does not require
Althen to provide medical documentation of plausibility, then it cannot require her to
demonstrate that her specific injury is recognized by said medical documentation of plausibility.”
418, F.3d at 1281.
As the Federal Circuit stated in Knudsen, 35 F.3d at 549:
The Court of Federal Claims is therefore not to be seen as a vehicle
for ascertaining precisely how and why DTP and other vaccines
sometimes destroy the health and lives of certain [vaccinees] while
safely immunizing most others. This research is for scientists,
engineers, and doctors working in hospitals, laboratories, medical
9

Case 1:11-vv-00216-UNJ Document 98 Filed 11/06/15 Page 10 of 12
institutes, pharmaceutical companies, and government agencies.
The special masters are not ‘diagnosing’ vaccine-related injuries.
The sole issues for the special master are, based on the record
evidence as a whole and the totality of the case, whether it has
been shown by a preponderance of the evidence that a vaccine
caused the [vaccinee’s] injury. . . .
The undersigned found notable respondent’s expert Dr. Levinson’s testimony that he
believes petitioner had an adverse reaction to Tdap, but he does not know the mechanism
involved. Tr. at 320-21. Dr. Levinson termed petitioner’s response to Tdap a hypersensitivity
reaction. Id. at 328. Although he does not see how petitioner’s Addison’s disease is connected
to that, his puzzlement fits exactly into the Federal Circuit’s statement in Althen that we are
dealing in a field bereft of complete and direct proof of how vaccines affect the human body.
Both immunologic experts struggled to explain how petitioner’s hypersensitivity reaction
occurred, differing only in that Dr. Bellanti opined petitioner’s Addison’s was part of his reaction
and Dr. Levinson denied it.
The undersigned is impressed by the continuity of allergic and immune symptoms
petitioner had immediately following receipt of Tdap vaccine, proceeding over time into adrenal
insufficiency, analogous to Addison’s disease. Petitioner experienced an immediate allergic
reaction to Tdap because he has an IgA sensitivity to casein, a milk product used in production of
the tetanus toxoid portion of Tdap vaccine. This immediate allergic reaction led, over time, to
more symptoms indicative of an adverse immune process, including hair loss, repetitive rashes,
weakness, diarrhea, and ultimately to failure of his adrenal glands to produce cortisol and
aldosterone, similar to Addison’s disease, for which petitioner must take supplements. The fact
that this Addison’s-like disease is autoimmune is not an impediment to petitioner’s entitlement to
damages merely because his preceding symptoms were based on an IgA allergy, i.e., immune-
mediated but not autoimmune. As the Federal Circuit has said repeatedly, the field of vaccine
causation lacks complete and direct proof and must rely on circumstantial evidence. From the
time he received Tdap vaccine, petitioner has been immunologically abnormal and his health
severely damaged.
Petitioner always assumed he would get better. His doctors told him his illness would
pass. Petitioner even borrowed $500,000.00 to buy into a partnership at his insurance company
even though he had been symptomatic for eight and one-half months. He tried valiantly to fulfill
the demands of his new job as a partner until his co-partners decided to buy him out and he was
dismissed. There is no evidence of malingering here. His illnesses are real and, unfortunately,
permanent. The undersigned accepts Dr. Bellanti’s testimony in toto. Petitioner merits
compensation.
Petitioner did not have full-blown anaphylaxis, which is why Dr. Bellanti and some of the
medical records refer to his having had an anaphylactoid response to Tdap. Petitioner also does
not have full-blown Addison’s disease, which is why Dr. Wilkinson diagnosed him with adrenal
insufficiency, prescribing hormones such as hydrocortisone and aldesterol that would also treat
10

Case 1:11-vv-00216-UNJ Document 98 Filed 11/06/15 Page 11 of 12
Addison’s. As far as the undersigned is concerned, these are distinctions without differences.
The issue in this case is whether an adverse reaction to a vaccination must adhere to strict
categories such as allergy, immune-mediated, and/or auto-immune, or whether someone’s
adverse reaction can be composed of components of each category. Recognizing that in a non-
Table case, which requires proving causation-in-fact, the actual diagnostic entity is not crucial to
a ruling of entitlement, the undersigned holds that a blurring of the distinctions among the three
categories of adverse reaction does not preclude a finding of entitlement to damages. As the
Federal Circuit stated in Knudsen, the undersigned is not “diagnosing” petitioner’s vaccine
injury. 35 F.3d at 549. Suffice it to say, the undersigned accepts Dr. Levinson’s description of
petitioner’s adverse reaction as a hypersensitivity reaction, and the undersigned credits Dr.
Bellanti’s opinion that this hypersensitivity reaction included petitioner’s adrenal insufficiency.
After petitioner reacted adversely to Tdap vaccine, his reaction continued since his
symptoms did not end. Moreover his symptomatology spread to include adrenal insufficiency
and other hormonal problems. Respondent’s expert Dr. Levinson agreed that petitioner reacted
adversely to his Tdap, but he did not know how long petitioner’s adverse response lasted. Dr.
Levinson’s hesitancy to put an endpoint to the reaction is due to petitioner’s symptoms perduring
and involving adrenal insufficiency, for which Dr. Levinson cannot pinpoint an exact
mechanism.
The undersigned concludes it is reasonable to connect petitioner’s entire immunologic
reaction to his adverse response. We do not know the specific biological mechanism(s) causing
petitioner’s perduring reaction to the Tdap vaccine. However, the Federal Circuit in Knudsen
states petitioners do not have the burden of proving a specific biological mechanism. Id.
Respondent’s expert Dr. Levinson agreed with Dr. Bellanti that there are multiple mechanisms
that cause both allergic and autoimmune reactions. The undersigned accepts Dr. Bellanti’s
theory that the exposure of petitioner to casein in the Tdap vaccine was sufficient to create
further sensitization, which continued his reaction to include adrenal insufficiency. The
testimony of both immunologic experts reveals the paucity of knowledge in the medical field of
describing what mechanism can explain immune-mediated/hypersensitivity reactions. No one
questions the timing of petitioner’s initial reaction in this case as indicative of causation.
The undersigned rules that petitioner is entitled to compensation.
CONCLUSION
Petitioner has prevailed on the issue of entitlement. The undersigned will schedule a
telephonic status conference soon to discuss resolution of damages.
IT IS SO ORDERED.
11

Case 1:11-vv-00216-UNJ Document 98 Filed 11/06/15 Page 12 of 12
Dated: November 5, 2015 /s/ Laura D. Millman
Laura D. Millman
Special Master
12

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_11-vv-00216-2
Date issued/filed: 2019-01-07
Pages: 13
Docket text: PUBLIC ORDER/RULING (Originally filed: 12/11/2018) regarding 190 Findings of Fact & Conclusions of Law. Signed by Special Master Laura D. Millman. (et) Service on parties made.
--------------------------------------------------------------------------------
Case 1:11-vv-00216-UNJ Document 196 Filed 01/07/19 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-216V
Filed: December 11, 2018
Not to be Published
*************************************
JEFFREY DAVID SIMMONS, *
*
Petitioner, *
Petitioner’s Motion for a Ruling on
*
Damages Award
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Clifford J. Shoemaker, Vienna, VA, for petitioner.
Justine E. Walters, Washington, DC, for respondent.
MILLMAN, Special Master
RULING ON DAMAGES AWARD1
On April 7, 2011, petitioner filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that the tetanus toxoid-diphtheria-acellular
pertussis (“Tdap”) vaccine he received on April 11, 2008 caused him anaphylaxis, immune
dysregulation, and autoimmune disease leading to Addison’s disease. Pet. at ¶ 107. Petitioner
was 38 years old when he received Tdap vaccine. He is now 49 years old.
On October 30, 2015, the undersigned ruled that petitioner is entitled to compensation,
holding “. . . it is reasonable to connect petitioner’s entire immunologic reaction to his adverse
response [to the Tdap vaccine]. . . . [P]etitioners do not have the burden of proving a specific
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the decision will be available to anyone with access to
the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, the undersigned agrees that the identified material fits within this definition,
the undersigned will redact such material from public access.

Case 1:11-vv-00216-UNJ Document 196 Filed 01/07/19 Page 2 of 13
biological mechanism.” Simmons v. Sec’y of HHS, No. 11-216V, 2015 WL 6778563, at *8
(Fed. Cl. Spec. Mstr. Oct. 30, 2015). Since then, the parties have been engaged in resolution of
damages.
One barrier to settlement is the calculation of petitioner’s lost wages. On July 19, 2016,
petitioner’s economist Dr. Robert W. Cook submitted his first expert report stating petitioner’s
net lost income is $4,950,921.00. Doc 113-2.
On May 23, 2017, respondent filed his first expert report from his economist Dr. Patrick
F. Kennedy stating petitioner has $1,017,816.00 in loss of earnings and benefits. Doc 143-1.
During a status conference held on June 5, 2017, the undersigned gave petitioner until June 30,
2017 to file Dr. Cook’s responsive report.
On September 20, 2017, petitioner filed the first affidavit of Mr. Jeff Barrom, a Senior
Vice President with Hub International Northwest, LLC (“HUB International”). Doc 148-2.
On October 30, 2017, after three motions for an extension of time, petitioner filed Dr.
Cook’s supplemental (second) expert report based on information provided in Mr. Barrom’s first
affidavit, concluding petitioner has $3,978,303.00 in net lost income. Doc 150-2.
During a status conference held on November 17, 2017, the undersigned discussed the
parties’ expert reports (Docs 113-2, 143-1, and 150-2) and Mr. Barrom’s affidavit (Doc 148-2).
On November 20, 2017, the undersigned issued an order addressing several issues in the parties’
economic expert reports, and requiring Mr. Barrom to answer respondent’s additional questions
and each party to file their supplemental economist reports. Doc 151. In the same Order, the
undersigned required the parties’ experts, in their supplemental expert reports, to use: (1) the
same date, January 1, 2018, as the demarcation between petitioner’s past and future damages,
subject to future changes; (2) the same lengths of life expectancy (March 8, 2049) and work life
expectancy (May 28, 2033); (3) $42,070.00 as the base W-2 income in 2009 to calculate
petitioner’s incomes from 2010 to at least March 31, 2014; and (4) Employment and Earnings for
Insurance Agencies and Brokerages (“EEIAB”) as the source for projections of petitioner’s wage
growth since the data are specific to the insurance industry. Id. at 2-3.
On January 25, 2018, petitioner filed Mr. Barrom’s second affidavit, in which Mr.
Barrom said he cannot provide copies of the material upon which he relied because the material
is “confidential and proprietary.” Doc 153-2, at 1.
On April 10, 2018, petitioner filed Dr. Cook’s supplemental (third) expert report
providing petitioner’s lost wages as “no less than $2,619,329.00 and no more than
$3,698,921.00.” Doc 159-2, at 9. On April 16, 2018, respondent filed Dr. Kennedy’s
supplemental (second) expert report in response to the undersigned’s Order of November 20,
2017 and to Mr. Barrom’s second affidavit. Doc 160-1.
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In an email on April 27, 2018 to the undersigned’s law clerk, respondent stated if
petitioner intended to continue to rely on Mr. Barrom’s affidavits, he should produce the material
upon which Mr. Barrom relied in his statements supporting petitioner’s loss of earnings. On
April 27, 2018, petitioner filed a status report asserting that the record on lost wages was
complete and Mr. Barrom would not be able to provide copies of documentation upon which he
relied in his affidavits due to confidentiality and proprietary issues. Doc 161, at 1.
On April 30, 2018, the undersigned issued an order requiring respondent to file a Motion
for Discovery of the material upon which Mr. Barrom relied in his affidavits. On May 21, 2018,
respondent filed a Motion for Production of Documents Regarding Petitioner’s Lost Wages
Claim (“Motion for Production”).
On May 22, 2018, petitioner filed a Notice of Clarification and Partial Response to
Motion to Produce Documents stating that because petitioner is not in possession of the
documents and has no ownership of the documents, respondent should be seeking Third Party
Discovery as neither Mr. Barrom nor HUB International is a party in this case. Doc 165, at 1.
On June 5, 2018, respondent filed a response to Petitioner’s Notice of Clarification and
Response to Motion to Produce Documents stating that it is petitioner’s burden to prove
petitioner’s damages and “a special master cannot award over $1 million in additional lost wages
based on a third party’s interpretation of undisclosed evidence that neither party nor the Court
has seen.” Doc 167, at 2.
On the same day, the undersigned ordered each party to select by June 19, 2018 one of
three options: (1) the undersigned will hold a hearing on economic loss with Dr. Cook, Dr.
Kennedy, and Mr. Barrom as witnesses; (2) petitioner shall serve a subpoena duces tecum on
HUB International to produce the documents upon which Mr. Barrom relied in his affidavits; or
(3) the undersigned will decide the issue of lost wages on motion for a Ruling on the Record.
On June 19, 2018, after respondent filed a status report choosing option (2), petitioner
filed a status report requesting 30 days to provide the updated life care plan costs and a Motion
for Ruling on the Record incorporating all elements of compensation. The undersigned granted
petitioner’s informal motion and ordered petitioner to file a Motion for Ruling on the Record
incorporating all elements of compensation by July 18, 2018. The undersigned denied
respondent’s Motion for Production as moot.
On July 17, 2018, petitioner filed an updated summary chart of all past unreimbursable
medical expenses (Docs 173-2 and -3) and petitioner’s updated life care plan (Doc 173-4) with
an analysis of cost differences between his plan (Docs 128-2 and 173-4) and respondent’s plan
(Doc 136-6). On July 18, 2018, petitioner filed his Medicaid Lien update and a press release
regarding Mr. Barrom.
On July 18, 2018, petitioner filed a Motion for [a] Ruling on Damages Award
(“motion”).
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On August 29, 2018, the case was referred to another special master for a mandatory
settlement conference.2 By email contact with the undersigned’s law clerk and the mediator’s
law clerk, the parties on two occasions have expressed a wish not to participate in mediation but
to have the undersigned rule on the record. This ruling is a response to the parties’ wishes and,
by separate order, the undersigned is on the day of this ruling removing this case from mediation.
On October 26, 2018, respondent filed a response to petitioner’s motion (“response”).
On November 2, 2018, petitioner filed a reply to respondent’s response to petitioner’s
motion (“reply”).
On November 20, 2018, petitioner filed Exhibit 91 consisting of a final Medicaid lien
amount of $465.36. On the same date, petitioner filed a status report stating that there were no
outstanding items left for petitioner to file and the case was ripe for the undersigned’s decision
on damages.
MOTION AND FILINGS
On July 18, 2018, petitioner filed his Motion for [a] Ruling on Damages Award.
Petitioner updated his calculation of economic loss to $4,480,530.62 consisting of lost wages of
$3,698,921.00, life care plan costs of $753,837.00, to-date out-of-pocket unreimbursable medical
expenses of $25,599.50, and Medicaid Lien of $2,173.12, and asserted that he is entitled to the
full $250,000.00 in pain & suffering. Doc 176.
On October 26, 2018, respondent filed his response rejecting the amount of each damage
component requested in petitioner’s motion arguing: (1) because petitioner relies upon Mr.
Barrom’s affidavits in the absence of corroborating evidence needed to support his valuation of
lost wages, respondent requested the undersigned award lost earnings in accordance with
respondent’s economist Dr. Kennedy’s analysis and projections, which is $1,019,102.00 (Doc
160-2, at 1); (2) because a petitioner cannot recover damages for a non-identified autoimmune
disease (referring to the Vaccine Act without a citation and citing Broekelschen v. Sec’y of HHS,
618 F.3d 1339 (Fed. Cir. 2010)) and Dr. Weiss3 is the only expert respondent says is qualified to
opine on petitioner’s proper treatment in this case, petitioner’s past unreimbursable medical
expenses and life care plan costs should be reduced to include adrenal insufficiency, petitioner’s
only “defined and recognized injury”; (3) the undersigned should not compensate petitioner
Medicaid Lien since he has not provided an itemized list of the services paid for by Medicaid on
2 The Office of Special Masters has implemented a mandatory settlement program for certain non-autism
cases filed in 2012 or beforehand.
3 On November 13, 2016, one year and two weeks after the undersigned issued a Ruling on Entitlement in
favor of petitioner, respondent filed an expert report of Dr. Roy E. Weiss, an endocrinologist, as Exhibit
M. Dr. Weiss states there is no evidence in this case that petitioner has Addison’s disease. Id. at 1. Dr.
Weiss then criticizes the costs for medications, blood tests, care givers, and transportation petitioner’s life
care planner included in the life care plan.
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his behalf; and (4) petitioner is not entitled to the maximum award of $250,000.00 for actual pain
and suffering, but respondent defers to the undersigned’s discretion. Doc 184, at 5-15.
On November 2, 2018, petitioner filed his reply to respondent’s response. Petitioner
argues: (1) petitioner has produced substantial underlying documentation of his lost wages
demand with three economist reports from his expert Dr. Cook and two affidavits from a fact
witness Mr. Barrom who has provided answers to all of respondent’s and the undersigned’s
questions; (2) respondent’s reliance on Broekelschen is misplaced and the undersigned made it
clear in her ruling on entitlement that petitioner does not have full-blown Addison’s disease;
therefore, petitioner is entitled to compensation for his past unreimbursable medical expenses
and life care plan costs in full; (3) petitioner is entitled to the full $250,000.00 in pain and
suffering since his suffering has already exceeded the statutory cap based on his wife’s
testimony; and (4) petitioner will provide the final Medicaid Lien as soon as possible. Doc 186,
at 1-6.
DISCUSSION
I. Lost Wages
For calculating petitioner’s lost earnings award, petitioner’s expert Dr. Cook projects the
following five categories of income into the future:
(a) Petitioner’s expected base salary as an employee of Argus Insurance Inc. (“Argus”);
(b) Petitioner’s expected K-1 income as part owner of Argus;
(c) Petitioner’s W-2 income as the result of the transfer of retiring agent accounts;
(d) Employer contributions to petitioner’s 401(k) account; and
(e) The sale value at retirement of petitioner’s ownership interest in Argus.
Doc 159, at 3.
On the other hand, respondent’s expert Dr. Kennedy believes that the only component
that should be included in the calculation is petitioner’s W-2 base salary and commissions (“W-2
income”). In his first expert report, Dr. Kennedy analyzed petitioner’s K-1 income for
illustrative purposes only. Doc 143-1, at 5. Because petitioner’s affidavit and a 2009 K-1 were
the only support at that time for petitioner’s loss of annual K-1 income from January 1, 2009 to
April 1, 2014 when Argus was sold to HUB International, Dr. Kennedy argued that he “cannot
opine that it is more likely than not that the 2009 K-1 income would have continued at the same
level in all future years.” Id. at 4.
On September 20, 2017 and January 24, 2018, petitioner filed Mr. Barrom’s two
affidavits, both of which support petitioner’s K-1 income calculation. However, Dr. Kennedy
maintains in his second expert report that no supporting documentation has been produced that
could be used to verify that petitioner’s statements and calculations for his loss of K-1 income
are accurate. Doc 160-1, at 3. For the same reason, Dr. Kennedy disagrees with including
5

Case 1:11-vv-00216-UNJ Document 196 Filed 01/07/19 Page 6 of 13
petitioner’s retiring producer W-2 income in the calculation of petitioner’s past and future loss of
earnings. Id. at 5.
In addition, the parties disagree on the present value methodology. While Dr. Cook uses
a two-step discounting approach, Dr. Kennedy uses a one-step net discount rate (“NDR”)
approach.
Thus, the main disagreements between the parties are: (1) whether Mr. Barrom’s
affidavits in the absence of part or all corroborating evidence are sufficient to support petitioner’s
valuation of the disputed components of his lost earnings, which include W-2 income, ownership
income,4 and retiring producer W-2 income; and (2) the method in the calculation of the present
value of petitioner’s future wage loss.
A. W-2 Income
In his first expert report, Dr. Cook took petitioner’s base W-2 income in 2009 as
$42,000.00 and projected it into the future with the wage growth rates based on Board of
Trustees – Federal Old-Age and Survivors Insurance and Disability Insurance Trust Funds
(“OASDI”). Doc 113-2, at 11. The sum of petitioner’s W-2 income was $1,450,731.00.
In his first expert report, Dr. Kennedy used the base W-2 income in 2009 as $42,070.00
and projected it into the future with the wage growth rates based on EEIAB, which the
undersigned ruled as the preferable basis in her Order of November 20, 2017. Doc 143-1, at 3.
The sum of petitioner’s W-2 income was $1,017,816.
In his second expert report, Dr. Cook raised the base W-2 income starting in 2010 from
$43,100.00 to $112,500.00, relying solely on Mr. Barrom’s answer to Question 6 in his first
affidavit, resulting in an increase in the sum of petitioner’s W-2 income from $1,450,731.00 in
Dr. Cook’s first report to $3,086,441.00. Doc 150-2, at 2-3. The undersigned identified this
issue in her Order of November 20, 2017:
Question 6 in Mr. Barrom’s affidavit, dated September 20, 2017, reads “Jeff’s
HUB/Argus Income 2014-today? Rather, from what income would Jeff’s
share have been calculated? If prefer to simply state what Jeff’s income would
have been today.” According to Mr. Barrom’s Answer 6, the annual income
of an insurance agent on the same track as petitioner was would be, if all
production goals were met, between $100,000.00 and $125,000.00. The
undersigned finds this answer is too vague for the parties’ experts to use as a
base annual salary from April 1, 2014, the time of sale of Argus to HUB.
While “2014-today (September 20, 2017)” is an over 3-year period of time,
Mr. Barrom did not specify in his answer what was the time period he
intended. Furthermore, no information explains why the base W-2 salary
4 Petitioner’s loss of ownership income includes both loss of K-1 income from January 1, 2010 to April 1,
2014 and the loss on the sale of Argus ownership interest in 2014. Doc 143-1, at 5.
6

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before the sale of Argus ($42,070.00) and after (between $100,000.00 and
$125,000.00) would be so different if, as Mr. Barrom stated in his Answer 2,
“the model of compensation for agents [at HUB] is similar to what was in
place at Argus at the time of the sale.” Dr. Cook should not have in his
second report increased petitioner’s W-2 salary to $112,500 from 2010, over
three years before the sale of Argus.
Doc 151, at 2. The undersigned instructed Dr. Cook to change his calculation of annual income
to reflect these corrections. Id.
In his third expert report, Dr. Cook relied solely on Mr. Barrom’s answer to Question 4 in
his second affidavit to run petitioner’s W-2 income from 2010 to 2017 and then based on the
2017 W-2 income projection to calculate petitioner’s future wages from 2018 to 2033. While
Mr. Barrom stated in his first affidavit that “it is difficult to speculate exact incomes” and
provided the estimated annual earnings range for 2017 of $100,000.00 - $125,000.00 (Doc 148-
2, at 2), he provided in his second affidavit a spreadsheet showing an estimated 2010
compensation of $62,070.00 growing to an estimated $121,024.00 by 2017 without providing
any database or supporting documentation (Doc 153-2, at 2-3). Dr. Cook adopted Mr. Barrom’s
projections without providing any further explanation or analysis. The undersigned finds that
Mr. Barrom’s projections of petitioner’s W-2 income from 2010 to 2017 and Dr. Cook’s
adoption of Mr. Barrom’s projections in his third expert report speculative and inconsistent with
petitioner’s historical earnings and the industry data.
In his second expert report, Dr. Kennedy states that “while the information provided by
Mr. Barrom appears to support some of [p]etitioner’s damages calculations, no supporting
documentation has been produced that could be used to verify that his statements and
calculations are accurate.” Doc 160-1, at 3. Because petitioner is claiming a level of wages
and wage growth that are materially higher than statistical earnings data for insurance agents in
general and are inconsistent with petitioner’s historical wage growth prior to vaccination, Dr.
Kennedy argues that it is important to understand how Mr. Barrom arrived at his projections and
what documentation or information upon he relied in making his projections. Id. at 4.
In her Order of June 5, 2018, the undersigned provided petitioner with an option of
serving a subpoena duces tecum on HUB International to produce the documents upon which
Mr. Barrom relied in his affidavits; however, petitioner chose to file a motion for ruling on the
record. The undersigned agrees with Dr. Kennedy that it is important for a damages expert to
verify the information that forms the basis of a loss calculation, especially when petitioner’s
claimed net losses of nearly $4 million are based on projected wages that are much higher than
his prior years’ earnings as well as the statistical earnings data for insurance agents as collected.
The undersigned finds that the underlying material upon which Mr. Barrom based his projections
is necessary for the undersigned to reach a fair and well-informed decision concerning
petitioner’s W-2 income. Therefore, in the absence of petitioner’s filing this material, the
undersigned rules in favor of respondent on the calculation of petitioner’s W-2 income.
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B. Ownership Income
Effective January 1, 2009, petitioner purchased a 4.99% ownership interest in Argus and
executed a promissory note for the $550,310.48 purchase price payable to Argus. Petitioner
received $118,366.00 in business income via K-1 (“K-1 income” or “business income”) from
Argus in 2009. On April 1, 2014, HUB International acquired Argus and all holders of
promissory notes were required to pay them off with the proceeds from the sale to HUB
International. Doc 148-2, at 2. The sale price of Argus to HUB International is confidential.
Id. In his first affidavit, Mr. Barrom provided the exact amount of gross distributions from
petitioner’s 4.99% ownership shares for 2010 through 2014 in the absence of any supporting
documents. Id. at 1. In his second affidavit, Mr. Barrom stated that petitioner would have
received the full approximated gross distribution for 2014 regardless of the sale of Argus in April
2014. Doc 153-2, at 2.
In his second expert report, Dr. Cook agreed with Dr. Kennedy that the calculation for
petitioner’s K-1 income should not be increasing annually for the duration of petitioner’s work
life expectancy since January 1, 2010, but should terminate on April 1, 2014 when HUB
International acquire Argus. Doc 150-2, at 3. In both his second and third expert reports, Dr.
Cook adopted the exact amount of gross distributions that Mr. Barrom provided, resulting in
$499,344.00 of petitioner’s lost K-1 income before tax for 2010 through 2014.
In his first expert report, for illustrative purposes only, Dr. Kennedy analyzed petitioner’s
lost business income from January 1, 2010 to April 2014, using petitioner’s annual K-1 income
of $118,366.00 for 2009 and adjusting the annual compensation at the wage growth rates based
on EEIAB. Doc 143-1, at 5. Petitioner’s potential lost K-1 income after tax is $432,123.00.
Doc 143-5, at 3. Dr. Kennedy then projected petitioner’s promissory note payments5 as an
offset to his potential damages and added petitioner’s loss on sale of Argus ownership interest in
2014,6 resulting in a total of $338,859.00 as petitioner’s potential economic loss of his
ownership income after tax. In both his expert reports, Dr. Kennedy believes that a single K-1
for 2009 is not sufficient to determine petitioner’s loss of business income for 2010 through
April 2014. Doc 143-1, at 5 and Doc 160-1, at 1. Therefore, Dr. Kennedy does not include
petitioner’s potential economic loss of his ownership income in his calculation of petitioner’s
lost earnings award.
5 Petitioner took out a $550,310.48 loan to acquire Argus shares, effective January 1, 2009, with monthly
payments of $4,946.35 or $59,356.00 annually. Doc 143-5, at 3. Dr. Kennedy estimates that
petitioner’s payments ended upon the sale of Argus to HUB International in April 2014. Id.
6 Because the sale price of Argus to HUB International is confidential, Dr. Kennedy projected petitioner’s
loss on sale of Argus ownership interest in 2014 by applying a capitalization rate to net income as a
common valuation tool. “2009 K-1 income was $118,366.00. Restated to 2014 dollars, annual K-1
income is $138,777.00. K-1 Income / Capitalization Rate = Ownership Value ($138,777.00 / 24% =
$578,238.00).” Doc 143-1, at 5 n.4. From the $578,238.00 of Argus share value, Dr. Kennedy
deducted the remaining principal balance on the note payable for a net pre-tax amount of $165,143.00.
Id. at 5. In his second expert report, Dr. Cook agrees with Dr. Kennedy’s methodology. Doc 150-2, at
4.
8

Case 1:11-vv-00216-UNJ Document 196 Filed 01/07/19 Page 9 of 13
Because petitioner owned a 4.99% ownership interest in Argus, received a distribution in
2009, and provided his 2009 K-1, the undersigned finds an award for petitioner’s loss of
ownership income reasonable in this case. However, because Mr. Barrom will not provide any
documentation to support his projections of petitioner’s business income for 2010 through 2014,
the calculation for petitioner’s loss of business income should be based on petitioner’s K-1
income of $118,366.00 for 2009 and the wage growth rates according to EEIAB. In other
words, the undersigned agrees with Dr. Kennedy’s calculation of petitioner’s potential lost
ownership income. Doc 143-5, at 1-4. Therefore, the undersigned rules that petitioner is
entitled to $338,859.00 as his loss of ownership income.
C. Retiring Producer W-2 Income
Unlike petitioner’s K-1 income, his claimed retiring producer income was not included in
petitioner’s 2009 tax documents. Petitioner claims that he was going to be compensated for
retiring producer income in 2010. Doc 131-2, at 2. In his first affidavit, Mr. Barrom stated that
“I no longer have records for such things but [petitioner] is honest and the retiring or transition
plan he submitted indicated payments in 2010, so yes he would have been paid the applicable
renewal commission that Argus used at that time, which would have been 25% had he met the
previous year new business goal and if not it would have been 20%.” Doc 148-2, at 3. Mr.
Barrom later confirmed that had petitioner been employed at Argus in 2010, he would have
received commission income for the retiring producer accounts that he had been working on in
2008 and 2009 and the retiring producer income would have been reported in his 2010 W-2.
Doc 153-2, at 3. According to Mr. Barrom’s affidavits, it takes one to three years for the
transitioning agent to receive income from retiring agent accounts. However, petitioner’s
evidence explaining how the commission on retiring producer accounts would be paid to the
retiring partner (“RP”) and the transitioning partner (“TP”) says otherwise:
Beginning with policies which have an effective date of 1/1/2009 and later,
RP will receive .20 points of the producer portion of the agency commission
with the TP receiving the remainder of the producer portion of the
commission.
Doc 113-3, at 7. This document shows that petitioner would have received income from the
retiring producer accounts in 2009.
While Mr. Barrom indicated in his first affidavit, Answer 9, that he no longer has records
to support additional transfers after 2010, he provided in his second affidavit exact amounts of
retiring producer income petitioner would have been paid for 2010 through 2014 without any
supporting evidence. Doc 153-2, at 4. In his third expert report, Dr. Cook adopts Mr.
Barrom’s projections without independently evaluating the underlying evidence and assumes that
this level of income would have continued through petitioner’s remaining work life expectancy.
Doc 159-2, at 12-13. As Dr. Kennedy points out in his second expert report, it is important to
see how much the retiring producer accounts that were to be assigned to petitioner actually
9

Case 1:11-vv-00216-UNJ Document 196 Filed 01/07/19 Page 10 of 13
generated in commissions and how those accounts may have changed over time. Doc 160-1, at
5. The undersigned agrees with Dr. Kennedy’s opinion. There was no evidence that retiring
producer income was ever paid to petitioner in the manner described in the Argus policy
provided in petitioner’s evidence (Doc 113-3). Since the undersigned cannot award damages
based on speculation, she finds that petitioner is not entitled to the compensation for retiring
producer income.
D. Present Value Methodology
The parties disagree on the method of calculating the present value of petitioner’s future
wage loss. While Dr. Cook uses a two-step discounting approach, Dr. Kennedy uses a one-step
net discount rate (“NDR”) approach. The two-step discounting approach comprises two parts:
(1) future wages are grown annually at the appropriate rate for wage growth and (2) future values
are discounted to present day dollars at the appropriate projected interest rate. The NDR
approach incorporates both future wage growth and future interest rates into a single, one-step
calculation. Thus, if the same assumptions are used regarding interest rates and wage inflation,
the results under both approaches should be consistent.
Dr. Cook’s present value approach depends on the current yields on U.S. Treasury Notes
and Bonds, which are dynamic. Doc 159-2, at 6. Dr. Kennedy’s analysis implies a 3.50
percent annual wage growth and a 4.00 percent annual discount growth, which gives him a 0.50
percent fixed annual NDR. Doc 160-1 at 2. Dr. Cook argues that Dr. Kennedy’s reliance on a
fixed NDR is inappropriate since the interest rates available to petitioner are the same rates
available to all petitioners but the wage growth rate for all petitioners varies. Doc 159-2, at 7.
However, because the wage growth and interest rates are more difficult to project as
individual data series, Dr. Kennedy believes that “the net relationship between the two series is
more stable and can be more reliably projected over longer periods of time.” Doc 160-1, at 1-2.
The NDR approach also includes projected wage inflation. Id. at 2. Dr. Kennedy provides an
example in his second expert report to show that the NDR approach is more beneficial to
petitioner than the two-step discounting approach, if both approaches assume that the appropriate
wage inflation is 3.50 percent per year and the appropriate interest rate is 4.00 percent. Id. at 2-
3.
Thus, the disagreement between the parties is not which present value method is better
academically but really what rates should be chosen in this case. The undersigned agrees with
respondent that Dr. Cook’s use of current dynamic interest rates alone as the discount rate is not
accurate for a projection of a future loss of earnings over a long period of years. The
undersigned finds it is reasonable for Dr. Kennedy not to rely too heavily on the recent historical
or current interest rates since it would result in an understated net discount rate and it is
appropriate to examine statistics over a longer period in calculating the NDR because a longer
period includes the series of expansions and recessions that the economy has experienced. Doc
143-1, at 9. The undersigned also thinks it is important to take consumer price inflation into
account over a long period of time as Dr. Kennedy does in his analysis. Id. at 8. Therefore, the
10

Case 1:11-vv-00216-UNJ Document 196 Filed 01/07/19 Page 11 of 13
undersigned rules in favor of respondent on the issue of present value methodology.
II. Life Care Plan
On September 28, 2016, petitioner filed his original life care plan from his life care
planner Ms. Lynn Trautwein. Doc 128. Subsequently, respondent filed a report from Dr. Roy
Weiss rejecting all care items in petitioner’s life care plan indicated for Addison’s disease since
respondent asserts through Dr. Weiss’s post-entitlement ruling report that petitioner did not have
Addison’s disease. Doc 136-1, at 2-3. Respondent’s life care planner Ms. Linda Curtis relied
upon Dr. Weiss’ report to deny a substantial part of petitioner’s life care plan. Doc 183-1.
Petitioner argues in his motion that Dr. Weiss’ report was unnecessary as the undersigned
and the parties were well aware of the nature of petitioner’s diagnoses. Doc 176, at 6. In his
response, respondent claims that Dr. Weiss, as a board-certified endocrinologist, is the only
expert qualified to opine on the proper treatment of petitioner, and petitioner’s life care plan
should be based on the diagnosis of adrenal insufficiency, petitioner’s only defined and
recognized injury in this case. Doc 184, at 13.
The undersigned finds respondent’s argument against petitioner’s entitlement to
compensation for his entire immunologic reaction is contrary to law. The undersigned made it
clear in her ruling on entitlement that petitioner does not have full-blown Addison’s disease,
which is why petitioner’s treating doctor, Dr. Richard Wilkinson, diagnosed him with adrenal
insufficiency. Simmons v. Sec’y of HHS, No. 11-216V, 2015 WL 6778563, at *8 (Fed. Cl.
Spec. Mstr. Oct. 30, 2015). Respondent’s expert Dr. Levinson believed petitioner had an
adverse reaction to Tdap, but he did not know the mechanism involved and labeled petitioner’s
adverse reaction as a hypersensitivity reaction, which the undersigned accepted in her ruling on
entitlement. Id. at *7-8. The undersigned held that a blurring of the distinctions among the
categories of adverse reaction does not preclude a finding of entitlement to damages. Id. at *8.
Therefore, the undersigned finds petitioner is entitled to compensation for his entire
immunologic reaction which Tdap vaccine caused.
III. Past Out-of-Pocket Unreimbursable Medical Expenses
Petitioner requests to-date out-of-pocket unreimbursable medical expenses of $25,499.50.
Doc 186, at 5. Respondent maintains that the undersigned must award damages for past
unreimbursable expenses consistent with the opinions of Dr. Weiss and Ms. Curtis and, thus,
petitioner’s request for past unreimbursable expenses should be reduced to exclude the myriad of
unorthodox and medically unnecessary treatments that Dr. Wilkinson recommended. Doc 184,
at 14. For the same reasons discussed in the section on the Life Care Plan, the undersigned
disagrees with respondent and rules in favor of petitioner on the issue of out-of-pocket
unreimbursable medical expenses.
IV. Medicaid Lien
11

Case 1:11-vv-00216-UNJ Document 196 Filed 01/07/19 Page 12 of 13
Petitioner requests compensation for a Medicaid Lien of $2,173.12 to Rawlings Company
and $252.77 to Washington State Healthcare Authority. Doc 186, at 5-6. Petitioner’s also
requests compensation for another Medicaid lien of $465.36 which Centene-Washington-
Coordinated Care (“Centene-CC”), a Medicaid plan, paid. Doc 188-2, at 1-2.
V. Pain and Suffering
In his motion, petitioner argues that his past pain and suffering has clearly exceeded the
statutory cap in the decade since his Tdap vaccination and he continues to experience daily pain
and emotional distress. Doc 176, at 4-5. As a result, he asserts that he is entitled to the full
$250,000.00 in pain and suffering under the Vaccine Act. Id. at 5.
Based on the evidence provided in the case, the undersigned finds an award for “pain and
suffering” to be appropriate. In determining how much to award in pain and suffering for
petitioner, the undersigned notes that any amount for future pain and suffering must be adjusted
to its “net present value.” Youngblood v. Sec’y of HHS, 32 F.3d 552 (Fed. Cir. 1994). The
undersigned finds it appropriate to use a NDR of 0.50 percent per year in calculating the net present
value of the future award. The award for future pain and suffering will be calculated based upon
$75,000.00 divided over a 31-year period, utilizing a NDR of 0.50 percent per year. Therefore, the
undersigned awards petitioner $100,000.00 for past pain and suffering and $64,255.95 as net
present value of $75,000.00 for future pain and suffering.
CONCLUSION
The undersigned finds that petitioner is entitled to an award of the following damages:
a. Loss of earnings, including W-2 income based on respondent’s calculation subject to
the change of date as the demarcation between petitioner’s past and future damages,
employer contribution to petitioner’s 401(k) account,7 and $338,859.00 as his loss of
ownership income;
b. Past and future unreimbursable medical expenses for his entire immunologic reaction
caused by the Tdap vaccine;
c. Medicaid lien which is a compilation of the sums filed; and
d. $164,255.95 for past and future pain and suffering.
Respondent shall file a proffer consistent with this Ruling no later than January 22, 2019.
7 Both parties agree that petitioner’s employer contributions to his 401(k) account is at five percent of
petitioner’s W-2 income. Doc 143-1, at 4 and Doc 150-2, at 3. The calculation should be consistent
with the undersigned’s ruling for W-2 income, wage growth rate, and discount rate.
12

Case 1:11-vv-00216-UNJ Document 196 Filed 01/07/19 Page 13 of 13
IT IS SO ORDERED.
Dated: December 11, 2018 /s/ Laura D. Millman
Laura D. Millman
Special Master
13

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_11-vv-00216-3
Date issued/filed: 2019-04-08
Pages: 15
Docket text: PUBLIC ORDER/RULING (Originally filed: 3/14/2019) regarding 199 Findings of Fact & Conclusions of Law. Signed by Special Master Laura D. Millman. (et) Service on parties made.
--------------------------------------------------------------------------------
Case 1:11-vv-00216-UNJ Document 202 Filed 04/08/19 Page 1 of 15
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-216V
Filed: March 14, 2019
Not to be Published
*************************************
JEFFREY DAVID SIMMONS, *
*
Petitioner, *
Petitioner’s Motion for a Ruling on
*
Damages Award
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Clifford J. Shoemaker, Vienna, VA, for petitioner.
Justine E. Walters, Washington, DC, for respondent.
MILLMAN, Special Master
RULING ON DAMAGES AWARD1
On April 7, 2011, petitioner filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that the tetanus toxoid-diphtheria-acellular
pertussis (“Tdap”) vaccine he received on April 11, 2008 caused him anaphylaxis, immune
dysregulation, and autoimmune disease leading to Addison’s disease. Pet. at ¶ 107. Petitioner
was 38 years old when he received Tdap vaccine. He is now 49 years old.
On October 30, 2015, the undersigned ruled that petitioner is entitled to compensation,
holding “. . . it is reasonable to connect petitioner’s entire immunologic reaction to his adverse
response [to the Tdap vaccine]. . . . [P]etitioners do not have the burden of proving a specific
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the ruling will be available to anyone with access to
the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, the undersigned agrees that the identified material fits within this definition,
the undersigned will redact such material from public access.

Case 1:11-vv-00216-UNJ Document 202 Filed 04/08/19 Page 2 of 15
biological mechanism.” Simmons v. Sec’y of HHS, No. 11-216V, 2015 WL 6778563, at *8
(Fed. Cl. Spec. Mstr. Oct. 30, 2015). Since then, the parties have been engaged in resolution of
damages. Both parties have filed life care plans but have failed to settle damages.
One barrier to settlement is the calculation of petitioner’s lost wages. On July 19, 2016,
petitioner’s economist Dr. Robert W. Cook submitted his first expert report stating petitioner’s
net lost income is $4,950,921.00. Doc 113-2.
On May 23, 2017, respondent filed his first expert report from his economist Dr. Patrick
F. Kennedy stating petitioner has $1,017,816.00 in loss of earnings and benefits. Doc 143-1.
During a status conference held on June 5, 2017, the undersigned gave petitioner until June 30,
2017 to file Dr. Cook’s responsive report.
On September 20, 2017, petitioner filed the first affidavit of Mr. Jeff Barrom, a Senior
Vice President with Hub International Northwest, LLC (“HUB International”). Doc 148-2.
On October 30, 2017, after three motions for an extension of time, petitioner filed Dr.
Cook’s supplemental (second) expert report based on information provided in Mr. Barrom’s first
affidavit, concluding petitioner has $3,978,303.00 in net lost income. Doc 150-2.
During a status conference held on November 17, 2017, the undersigned discussed the
parties’ expert reports (Docs 113-2, 143-1, and 150-2) and Mr. Barrom’s affidavit (Doc 148-2).
On November 20, 2017, the undersigned issued an order addressing several issues in the parties’
economic expert reports, and requiring Mr. Barrom to answer respondent’s additional questions
and each party to file their supplemental economist reports. Doc 151. In the same Order, the
undersigned required the parties’ experts, in their supplemental expert reports, to use: (1) the
same date, January 1, 2018,2 as the demarcation between petitioner’s past and future damages,
subject to future changes; (2) the same lengths of life expectancy (March 8, 2049) and work life
expectancy (May 28, 2033); (3) $42,070.00 as the base W-2 income in 2009 to calculate
petitioner’s incomes from 2010 to at least March 31, 2014; and (4) Employment and Earnings for
Insurance Agencies and Brokerages (“EEIAB”) as the source for projections of petitioner’s wage
growth since the data are specific to the insurance industry. Id. at 2-3.
On January 25, 2018, petitioner filed Mr. Barrom’s second affidavit, in which Mr.
Barrom said he cannot provide copies of the material upon which he relied because the material
is “confidential and proprietary.” Doc 153-2, at 1.
On April 10, 2018, petitioner filed Dr. Cook’s supplemental (third) expert report
providing petitioner’s lost wages as “no less than $2,619,329.00 and no more than
$3,698,921.00.” Doc 159-2, at 9. On April 16, 2018, respondent filed Dr. Kennedy’s
supplemental (second) expert report in response to the undersigned’s Order of November 20,
2017 and to Mr. Barrom’s second affidavit. Doc 160-1.
2 Considering the failure of the parties to settle, the demarcation between past and future damages shall now be the
date of this Ruling and not January 1, 2018.
2

Case 1:11-vv-00216-UNJ Document 202 Filed 04/08/19 Page 3 of 15
In an email on April 27, 2018 to the undersigned’s law clerk, respondent stated if
petitioner intended to continue to rely on Mr. Barrom’s affidavits, he should produce the material
upon which Mr. Barrom relied in his statements supporting petitioner’s loss of earnings. On
April 27, 2018, petitioner filed a status report asserting that the record on lost wages was
complete and Mr. Barrom would not be able to provide copies of documentation upon which he
relied in his affidavits due to confidentiality and proprietary issues. Doc 161, at 1.
On April 30, 2018, the undersigned issued an order requiring respondent to file a Motion
for Discovery of the material upon which Mr. Barrom relied in his affidavits. On May 21, 2018,
respondent filed a Motion for Production of Documents Regarding Petitioner’s Lost Wages
Claim (“Motion for Production”).
On May 22, 2018, petitioner filed a Notice of Clarification and Partial Response to
Motion to Produce Documents stating that because petitioner is not in possession of the
documents and has no ownership of the documents, respondent should be seeking Third Party
Discovery as neither Mr. Barrom nor HUB International is a party in this case. Doc 165, at 1.
On June 5, 2018, respondent filed a response to Petitioner’s Notice of Clarification and
Response to Motion to Produce Documents stating that it is petitioner’s burden to prove
petitioner’s damages and “a special master cannot award over $1 million in additional lost wages
based on a third party’s interpretation of undisclosed evidence that neither party nor the Court
has seen.” Doc 167, at 2.
On the same day, the undersigned ordered each party to select by June 19, 2018 one of
three options: (1) the undersigned will hold a hearing on economic loss with Dr. Cook, Dr.
Kennedy, and Mr. Barrom as witnesses; (2) petitioner shall serve a subpoena duces tecum on
HUB International to produce the documents upon which Mr. Barrom relied in his affidavits; or
(3) the undersigned will decide the issue of lost wages on motion for a Ruling on the Record.
On June 19, 2018, after respondent filed a status report choosing option (2), petitioner
filed a status report requesting 30 days to provide the updated life care plan costs and a Motion
for Ruling on the Record incorporating all elements of compensation. The undersigned granted
petitioner’s informal motion and ordered petitioner to file a Motion for Ruling on the Record
incorporating all elements of compensation by July 18, 2018. The undersigned denied
respondent’s Motion for Production as moot.
On July 17, 2018, petitioner filed an updated summary chart of all past unreimbursable
medical expenses (Docs 173-2 and -3) and petitioner’s updated life care plan (Doc 173-4) with
an analysis of cost differences between his plan (Docs 128-2 and 173-4) and respondent’s plan
(Doc 136-6). On July 18, 2018, petitioner filed his Medicaid Lien update and a press release
regarding Mr. Barrom.
On July 18, 2018, petitioner filed a Motion for [a] Ruling on Damages Award
3

Case 1:11-vv-00216-UNJ Document 202 Filed 04/08/19 Page 4 of 15
(“motion”).
On August 29, 2018, the case was referred to another special master for a mandatory
settlement conference.3 By email contact with the undersigned’s law clerk and the mediator’s
law clerk, the parties on two occasions expressed a wish not to participate in mediation but to
have the undersigned rule on the record. This ruling is a response to the parties’ wishes and, by
separate order, the undersigned removed this case from mediation.
On October 26, 2018, respondent filed a response to petitioner’s motion (“response”).
On November 2, 2018, petitioner filed a reply to respondent’s response to petitioner’s
motion (“reply”).
On November 20, 2018, petitioner filed Exhibit 91 consisting of a final Medicaid lien
amount of $465.36. On the same date, petitioner filed a status report stating that there were no
outstanding items left for petitioner to file and the case was ripe for the undersigned’s decision
on damages.
On December 11, 2018, the undersigned issued a Ruling on Damages. On December 17,
2018, petitioner filed a Motion for Reconsideration, requesting the undersigned include the
updated past cost of life insurance premiums ($6,765.21) as part of the total of updated past
expenses in the damages award. Although on December 18, 2018, the undersigned denied
petitioner’s Motion for Reconsideration, on December 19, 2018, the undersigned withdrew the
denial of petitioner’s Motion for Reconsideration and issued an Order granting the Motion for
Reconsideration.
On March 5, 2019, respondent filed a Response to Ruling on Damages Award, requesting
the undersigned give respondent the opportunity to reply to petitioner’s Motion for
Reconsideration and withdrawing the December 11, 2018 Ruling on Damages to reissue the
Ruling on Damages with a complete listing of specific parameters. The undersigned held a
telephonic status conference with the parties on March 13, 2019 to clarify these requests.
On March 13, 2019, the undersigned issued an Order withdrawing the December 19,
2018 Order granting petitioner’s Motion for Reconsideration and withdrawing the undersigned’s
December 11, 2018 Ruling on Damages which included $25,499.50 in past unreimbursable
medical expenses (which award was the subject of petitioner’s Motion for Reconsideration).
This more specific Ruling on Damages does not include any past unreimbursable medical
expenses because the undersigned is waiting until April 15, 2019 for respondent to respond to
petitioner’s Motion for Reconsideration whether to include the $6,765.21 cost for health
insurance premiums to the amount of $25,499.50 which would then bring the total award for past
unreimbursable medical expenses to $32,264.71.
3 The Office of Special Masters had implemented a mandatory settlement program for certain non-autism
cases filed in 2012 or beforehand.
4

Case 1:11-vv-00216-UNJ Document 202 Filed 04/08/19 Page 5 of 15
After respondent files his response to petitioner’s Motion for Reconsideration on the
issue of past unreimbursable medical expenses on April 15, 2019, petitioner has two days until
April 17, 2019 to file a reply.
In addition, respondent shall file a report by April 15, 2019, updating the figures for
wage loss and other items from respondent’s prior filings, including net present value and growth
rates for appropriate items. The demarcation date for past and future damages is the date of this
Order, March 14, 2019.
After petitioner files a reply to respondent’s response to petitioner’s Motion for
Reconsideration, the undersigned will issue a Damages Decision including the updated figures
reflecting net present value and growth rate, and the amount of past unreimbursable medical
expenses.
MOTION AND FILINGS
On July 18, 2018, petitioner filed his Motion for [a] Ruling on Damages Award.
Petitioner updated his calculation of economic loss to $4,480,530.62, consisting of wage loss of
$3,698,921.00, life care plan costs of $753,837.00, unreimbursable medical expenses of
$25,499.50, and Medicaid Lien of $2,173.12, and asserted that he is entitled to the full
$250,000.00 in pain & suffering. Doc 176.
On October 26, 2018, respondent filed his response rejecting the amount of each damage
component requested in petitioner’s motion arguing: (1) because petitioner relies upon Mr.
Barrom’s affidavits in the absence of corroborating evidence needed to support his valuation of
lost wages, respondent requested the undersigned award lost earnings in accordance with
respondent’s economist Dr. Kennedy’s analysis and projections, which is $1,019,102.00 (Doc
160-2, at 1); (2) because a petitioner cannot recover damages for a non-identified autoimmune
disease (referring to the Vaccine Act without a citation and citing Broekelschen v. Sec’y of HHS,
618 F.3d 1339 (Fed. Cir. 2010)) and Dr. Weiss4 is the only expert respondent says is qualified to
opine on petitioner’s proper treatment in this case, petitioner’s past unreimbursable medical
expenses and life care plan costs should be reduced to include adrenal insufficiency, petitioner’s
only “defined and recognized injury”; (3) the undersigned should not compensate petitioner
Medicaid Lien since he has not provided an itemized list of the services paid for by Medicaid on
his behalf; and (4) petitioner is not entitled to the maximum award of $250,000.00 for actual pain
and suffering, but respondent defers to the undersigned’s discretion. Doc 184, at 5-15.
On November 2, 2018, petitioner filed his reply to respondent’s response. Petitioner
4 On November 13, 2016, one year and two weeks after the undersigned issued a Ruling on Entitlement in
favor of petitioner, respondent filed an expert report of Dr. Roy E. Weiss, an endocrinologist, as Exhibit
M. Dr. Weiss states there is no evidence in this case that petitioner has Addison’s disease. Id. at 1. Dr.
Weiss then criticizes the costs for medications, blood tests, care givers, and transportation petitioner’s life
care planner included in the life care plan.
5

Case 1:11-vv-00216-UNJ Document 202 Filed 04/08/19 Page 6 of 15
argues: (1) petitioner has produced substantial underlying documentation of his lost wages
demand with three economist reports from his expert Dr. Cook and two affidavits from a fact
witness Mr. Barrom who has provided answers to all of respondent’s and the undersigned’s
questions; (2) respondent’s reliance on Broekelschen is misplaced and the undersigned made it
clear in her ruling on entitlement that petitioner does not have full-blown Addison’s disease;
therefore, petitioner is entitled to compensation for his past unreimbursable medical expenses
and life care plan costs in full; (3) petitioner is entitled to the full $250,000.00 in pain and
suffering since his suffering has already exceeded the statutory cap based on his wife’s
testimony; and (4) petitioner will provide the final Medicaid Lien as soon as possible. Doc 186,
at 1-6.
DISCUSSION
I. Lost Wages
For calculating petitioner’s lost earnings award, petitioner’s expert Dr. Cook projects the
following five categories of income into the future:
(a) Petitioner’s expected base salary as an employee of Argus Insurance Inc. (“Argus”);
(b) Petitioner’s expected K-1 income as part owner of Argus;
(c) Petitioner’s W-2 income as the result of the transfer of retiring agent accounts;
(d) Employer contributions to petitioner’s 401(k) account; and
(e) The sale value at retirement of petitioner’s ownership interest in Argus.
Doc 159, at 3.
On the other hand, respondent’s expert Dr. Kennedy believes that the only component
that should be included in the calculation is petitioner’s W-2 base salary and commissions (“W-2
income”). In his first expert report, Dr. Kennedy analyzes petitioner’s K-1 income for
illustrative purposes only. Doc 143-1, at 5. Because petitioner’s affidavit and a 2009 K-1 were
the only support at that time for petitioner’s loss of annual K-1 income from January 1, 2009 to
April 1, 2014 when Argus was sold to HUB International, Dr. Kennedy argues that he “cannot
opine that it is more likely than not that the 2009 K-1 income would have continued at the same
level in all future years.” Id. at 4.
On September 20, 2017 and January 24, 2018, petitioner filed Mr. Barrom’s two
affidavits, both of which support petitioner’s K-1 income calculation. However, Dr. Kennedy
maintains in his second expert report that no supporting documentation has been produced that
could be used to verify that petitioner’s statements and calculations for his loss of K-1 income
are accurate. Doc 160-1, at 3. For the same reason, Dr. Kennedy disagrees with including
petitioner’s retiring producer W-2 income in the calculation of petitioner’s past and future loss of
earnings. Id. at 5.
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In addition, the parties disagree on the present value methodology. While Dr. Cook uses
a two-step discounting approach, Dr. Kennedy uses a one-step net discount rate (“NDR”)
approach.
Thus, the main disagreements between the parties are: (1) whether Mr. Barrom’s
affidavits in the absence of part or all corroborating evidence are sufficient to support petitioner’s
valuation of the disputed components of his lost earnings, which include W-2 income, ownership
income,5 and retiring producer W-2 income; and (2) the method in the calculation of the present
value of petitioner’s future wage loss.
A. W-2 Income
In his first expert report, Dr. Cook takes petitioner’s base W-2 income in 2009 as
$42,000.00 and projects it into the future with the wage growth rates based on Board of Trustees
– Federal Old-Age and Survivors Insurance and Disability Insurance Trust Funds (“OASDI”).
Doc 113-2, at 11. The sum of petitioner’s W-2 income was $1,450,731.00.
In his first expert report, Dr. Kennedy uses the base W-2 income in 2009 as $42,070.00
and projects it into the future with the wage growth rates based on EEIAB, which the
undersigned ruled as the preferable basis in her Order of November 20, 2017. Doc 143-1, at 3.
The sum of petitioner’s W-2 income was $1,017,816.
In his second expert report, Dr. Cook raises the base W-2 income starting in 2010 from
$43,100.00 to $112,500.00, relying solely on Mr. Barrom’s answer to Question 6 in his first
affidavit, resulting in an increase in the sum of petitioner’s W-2 income from $1,450,731.00 in
Dr. Cook’s first report to $3,086,441.00. Doc 150-2, at 2-3. The undersigned identified this
issue in her Order of November 20, 2017:
Question 6 in Mr. Barrom’s affidavit, dated September 20, 2017, reads “Jeff’s
HUB/Argus Income 2014-today? Rather, from what income would Jeff’s
share have been calculated? If prefer to simply state what Jeff’s income would
have been today.” According to Mr. Barrom’s Answer 6, the annual income
of an insurance agent on the same track as petitioner was would be, if all
production goals were met, between $100,000.00 and $125,000.00. The
undersigned finds this answer is too vague for the parties’ experts to use as a
base annual salary from April 1, 2014, the time of sale of Argus to HUB.
While “2014-today (September 20, 2017)” is an over 3-year period of time,
Mr. Barrom did not specify in his answer what was the time period he
intended. Furthermore, no information explains why the base W-2 salary
before the sale of Argus ($42,070.00) and after (between $100,000.00 and
$125,000.00) would be so different if, as Mr. Barrom stated in his Answer 2,
“the model of compensation for agents [at HUB] is similar to what was in
5 Petitioner’s loss of ownership income includes both loss of K-1 income from January 1, 2010 to April 1,
2014 and the loss on the sale of Argus ownership interest in 2014. Doc 143-1, at 5.
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place at Argus at the time of the sale.” Dr. Cook should not have in his
second report increased petitioner’s W-2 salary to $112,500 from 2010, over
three years before the sale of Argus.
Doc 151, at 2. The undersigned instructed Dr. Cook to change his calculation of annual income
to reflect these corrections. Id.
In his third expert report, Dr. Cook relies solely on Mr. Barrom’s answer to Question 4 in
his second affidavit to run petitioner’s W-2 income from 2010 to 2017 and then based on the
2017 W-2 income projection to calculate petitioner’s future wages from 2018 to 2033. While
Mr. Barrom stated in his first affidavit that “it is difficult to speculate exact incomes” and
provided the estimated annual earnings range for 2017 of $100,000.00 - $125,000.00 (Doc 148-
2, at 2), he provides in his second affidavit a spreadsheet showing an estimated 2010
compensation of $62,070.00 growing to an estimated $121,024.00 by 2017 without providing
any database or supporting documentation (Doc 153-2, at 2-3). Dr. Cook adopts Mr. Barrom’s
projections without providing any further explanation or analysis. The undersigned finds that
Mr. Barrom’s projections of petitioner’s W-2 income from 2010 to 2017 and Dr. Cook’s
adoption of Mr. Barrom’s projections in his third expert report are speculative and inconsistent
with petitioner’s historical earnings and the industry data.
In his second expert report, Dr. Kennedy states that “while the information provided by
Mr. Barrom appears to support some of [p]etitioner’s damages calculations, no supporting
documentation has been produced that could be used to verify that his statements and
calculations are accurate.” Doc 160-1, at 3. Because petitioner is claiming a level of wages
and wage growth that are materially higher than statistical earnings data for insurance agents in
general and are inconsistent with petitioner’s historical wage growth prior to vaccination, Dr.
Kennedy argues that it is important to understand how Mr. Barrom arrived at his projections and
what documentation or information upon he relied in making his projections. Id. at 4.
In her Order of June 5, 2018, the undersigned provided petitioner with an option of
serving a subpoena duces tecum on HUB International to produce the documents upon which
Mr. Barrom relied in his affidavits; however, petitioner chose to file a motion for ruling on the
record. The undersigned agrees with Dr. Kennedy that it is important for a damages expert to
verify the information that forms the basis of a loss calculation, especially when petitioner’s
claimed net losses of nearly $4 million are based on projected wages that are much higher than
his prior years’ earnings as well as the statistical earnings data for insurance agents as collected.
The undersigned finds that the underlying material upon which Mr. Barrom based his projections
is necessary for the undersigned to reach a fair and well-informed decision concerning
petitioner’s W-2 income. Therefore, in the absence of petitioner’s filing this material, the
undersigned rules in favor of respondent on the calculation of petitioner’s W-2 income.
B. Ownership Income
Effective January 1, 2009, petitioner purchased a 4.99% ownership interest in Argus and
8

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executed a promissory note for the $550,310.48 purchase price payable to Argus. Petitioner
received $118,366.00 in business income via K-1 (“K-1 income” or “business income”) from
Argus in 2009. On April 1, 2014, HUB International acquired Argus and all holders of
promissory notes were required to pay them off with the proceeds from the sale to HUB
International. Doc 148-2, at 2. The sale price of Argus to HUB International is confidential.
Id. In his first affidavit, Mr. Barrom provided the exact amount of gross distributions from
petitioner’s 4.99% ownership shares for 2010 through 2014 in the absence of any supporting
documents. Id. at 1. In his second affidavit, Mr. Barrom stated that petitioner would have
received the full approximate gross distribution for 2014 regardless of the sale of Argus in April
2014. Doc 153-2, at 2.
In his second expert report, Dr. Cook agrees with Dr. Kennedy that the calculation for
petitioner’s K-1 income should not increase annually for the duration of petitioner’s work life
expectancy since January 1, 2010. Instead it should terminate on April 1, 2014 when HUB
International acquired Argus. Doc 150-2, at 3. In both his second and third expert reports, Dr.
Cook adopts the exact amount of gross distributions that Mr. Barrom provided, resulting in
$499,344.00 of petitioner’s lost K-1 income before tax for 2010 through 2014.
In his first expert report, for illustrative purposes only, Dr. Kennedy analyzes petitioner’s
lost business income from January 1, 2010 to April 2014, using petitioner’s annual K-1 income
of $118,366.00 for 2009 and adjusting the annual compensation at the wage growth rates based
on EEIAB. Doc 143-1, at 5. Petitioner’s potential lost K-1 income after tax is $432,123.00.
Doc 143-5, at 3. Dr. Kennedy then projects petitioner’s promissory note payments6 as an
offset to his potential damages and adds petitioner’s loss on sale of Argus ownership interest in
2014,7 resulting in a total of $338,859.00 as petitioner’s potential economic loss of his
ownership income after tax. In both his expert reports, Dr. Kennedy believes that a single K-1
for 2009 is not sufficient to determine petitioner’s loss of business income for 2010 through
April 2014. Doc 143-1, at 5 and Doc 160-1, at 1. Therefore, Dr. Kennedy does not include
petitioner’s potential economic loss of his ownership income in his calculation of petitioner’s
lost earnings award.
Because petitioner owned a 4.99% ownership interest in Argus, received a distribution in
2009, and provided his 2009 K-1, the undersigned finds an award for petitioner’s loss of
6 Petitioner took out a $550,310.48 loan to acquire Argus shares, effective January 1, 2009, with monthly
payments of $4,946.35 or $59,356.00 annually. Doc 143-5, at 3. Dr. Kennedy estimates that
petitioner’s payments ended upon the sale of Argus to HUB International in April 2014. Id.
7 Because the sale price of Argus to HUB International is confidential, Dr. Kennedy projected petitioner’s
loss on sale of Argus ownership interest in 2014 by applying a capitalization rate to net income as a
common valuation tool. “2009 K-1 income was $118,366.00. Restated to 2014 dollars, annual K-1
income is $138,777.00. K-1 Income / Capitalization Rate = Ownership Value ($138,777.00 / 24% =
$578,238.00).” Doc 143-1, at 5 n.4. From the $578,238.00 of Argus share value, Dr. Kennedy
deducted the remaining principal balance on the note payable for a net pre-tax amount of $165,143.00.
Id. at 5. In his second expert report, Dr. Cook agrees with Dr. Kennedy’s methodology. Doc 150-2, at
4.
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ownership income reasonable in this case. However, because Mr. Barrom will not provide any
documentation to support his projections of petitioner’s business income for 2010 through 2014,
the calculation for petitioner’s loss of business income should be based on petitioner’s K-1
income of $118,366.00 for 2009 and the wage growth rates according to EEIAB. In other
words, the undersigned agrees with Dr. Kennedy’s calculation of petitioner’s potential lost
ownership income. Doc 143-5, at 1-4. Therefore, the undersigned rules that petitioner is
entitled to $338,859.00 as his loss of ownership income.
C. Retiring Producer W-2 Income
Unlike petitioner’s K-1 income, his claimed retiring producer income was not included in
petitioner’s 2009 tax documents. Petitioner claims that he was going to be compensated for
retiring producer income in 2010. Doc 131-2, at 2. In his first affidavit, Mr. Barrom stated that
“I no longer have records for such things but [petitioner] is honest and the retiring or transition
plan he submitted indicated payments in 2010, so yes he would have been paid the applicable
renewal commission that Argus used at that time, which would have been 25% had he met the
previous year new business goal and if not it would have been 20%.” Doc 148-2, at 3. Mr.
Barrom later confirmed that had petitioner been employed at Argus in 2010, he would have
received commission income for the retiring producer accounts that he had been working on in
2008 and 2009 and the retiring producer income would have been reported in his 2010 W-2.
Doc 153-2, at 3. According to Mr. Barrom’s affidavits, it takes one to three years for the
transitioning agent to receive income from retiring agent accounts. However, petitioner’s
evidence explaining how the commission on retiring producer accounts would be paid to the
retiring partner (“RP”) and the transitioning partner (“TP”) says otherwise:
Beginning with policies which have an effective date of 1/1/2009 and later,
RP will receive .20 points of the producer portion of the agency commission
with the TP receiving the remainder of the producer portion of the
commission.
Doc 113-3, at 7. This document shows that petitioner would have received income from the
retiring producer accounts in 2009.
While Mr. Barrom indicated in his first affidavit, Answer 9, that he no longer has records
to support additional transfers after 2010, he provided in his second affidavit exact amounts of
retiring producer income petitioner would have been paid for 2010 through 2014 without any
supporting evidence. Doc 153-2, at 4. In his third expert report, Dr. Cook adopts Mr.
Barrom’s projections without independently evaluating the underlying evidence and assumes that
this level of income would have continued through petitioner’s remaining work life expectancy.
Doc 159-2, at 12-13. As Dr. Kennedy points out in his second expert report, it is important to
see how much the retiring producer accounts that were to be assigned to petitioner actually
generated in commissions and how those accounts may have changed over time. Doc 160-1, at
5. The undersigned agrees with Dr. Kennedy’s opinion. There was no evidence that retiring
producer income was ever paid to petitioner in the manner described in the Argus policy
10

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provided in petitioner’s evidence (Doc 113-3). Since the undersigned cannot award damages
based on speculation, she finds that petitioner is not entitled to the compensation for retiring
producer income.
D. Present Value Methodology
The parties disagree on the method of calculating the present value of petitioner’s future
wage loss. While Dr. Cook uses a two-step discounting approach, Dr. Kennedy uses a one-step
net discount rate (“NDR”) approach. The two-step discounting approach comprises two parts:
(1) future wages are grown annually at the appropriate rate for wage growth and (2) future values
are discounted to present day dollars at the appropriate projected interest rate. The NDR
approach incorporates both future wage growth and future interest rates into a single, one-step
calculation. Thus, if the same assumptions are used regarding interest rates and wage inflation,
the results under both approaches should be consistent.
Dr. Cook’s present value approach depends on the current yields on U.S. Treasury Notes
and Bonds, which are dynamic. Doc 159-2, at 6. Dr. Kennedy’s analysis implies a 3.50
percent annual wage growth and a 4.00 percent annual discount growth, which gives him a 0.50
percent fixed annual NDR. Doc 160-1 at 2. Dr. Cook argues that Dr. Kennedy’s reliance on a
fixed NDR is inappropriate since the interest rates available to petitioner are the same rates
available to all petitioners but the wage growth rate for all petitioners varies. Doc 159-2, at 7.
However, because the wage growth and interest rates are more difficult to project as
individual data series, Dr. Kennedy believes that “the net relationship between the two series is
more stable and can be more reliably projected over longer periods of time.” Doc 160-1, at 1-2.
The NDR approach also includes projected wage inflation. Id. at 2. Dr. Kennedy provides an
example in his second expert report to show that the NDR approach is more beneficial to
petitioner than the two-step discounting approach, if both approaches assume that the appropriate
wage inflation is 3.50 percent per year and the appropriate interest rate is 4.00 percent. Id. at 2-
3.
Thus, the disagreement between the parties is not which present value method is better
academically but what rates should be chosen in this case. The undersigned agrees with
respondent that Dr. Cook’s use of current dynamic interest rates alone as the discount rate is not
accurate for a projection of a future loss of earnings over a long period of years. The
undersigned finds it is reasonable for Dr. Kennedy not to rely too heavily on the recent historical
or current interest rates since it would result in an understated net discount rate and it is
appropriate to examine statistics over a longer period in calculating the NDR because a longer
period includes the series of expansions and recessions that the economy has experienced. Doc
143-1, at 9. The undersigned also thinks it is important to take consumer price inflation into
account over a long period of time as Dr. Kennedy does in his analysis. Id. at 8. Therefore, the
undersigned rules in favor of respondent on the issue of present value methodology.
II. Life Care Plans
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On September 28, 2016, petitioner filed his original life care plan from his life care
planner Ms. Lynn Trautwein. Doc 128. Subsequently, respondent filed a report from Dr. Roy
Weiss rejecting all care items in petitioner’s life care plan indicated for Addison’s disease since
respondent asserts through Dr. Weiss’s post-entitlement ruling report that petitioner did not have
Addison’s disease. Doc 136-1, at 2-3. Respondent’s life care planner Ms. Linda Curtis relied
upon Dr. Weiss’ report to deny a substantial part of petitioner’s life care plan. Doc 183-1.
Petitioner argues in his motion that Dr. Weiss’ report was unnecessary as the undersigned
and the parties were well aware of the nature of petitioner’s diagnoses. Doc 176, at 6. In his
response, respondent claims that Dr. Weiss, as a board-certified endocrinologist, is the only
expert qualified to opine on the proper treatment of petitioner, and petitioner’s life care plan
should be based on the diagnosis of adrenal insufficiency, petitioner’s only defined and
recognized injury in this case. Doc 184, at 13.
The undersigned finds respondent’s argument against petitioner’s entitlement to
compensation for his entire immunologic reaction is contrary to law. The undersigned made it
clear in her ruling on entitlement that petitioner does not have full-blown Addison’s disease,
which is why petitioner’s treating doctor, Dr. Richard Wilkinson, diagnosed him with adrenal
insufficiency. Simmons v. Sec’y of HHS, No. 11-216V, 2015 WL 6778563, at *8 (Fed. Cl.
Spec. Mstr. Oct. 30, 2015). Respondent’s expert Dr. Levinson believed petitioner had an
adverse reaction to Tdap, but he did not know the mechanism involved and labeled petitioner’s
adverse reaction a hypersensitivity reaction, which the undersigned accepted in her ruling on
entitlement. Id. at *7-8. The undersigned held that a blurring of the distinctions among the
categories of adverse reaction does not preclude a finding of entitlement to damages. Id. at *8.
Therefore, the undersigned finds petitioner is entitled to compensation for his entire
immunologic reaction which Tdap vaccine caused.
The undersigned finds reasonable and necessary and awards the following:
The undersigned will pay for Washington Health Plan Finder Kaiser Permanente (KP)
VisitsPlus Silver HD, which in 2018 cost $6,897.72 annually now through 2034 when petitioner
becomes 65. This cost will have to be updated to 2019 rates. The undersigned does not find
awarding a $1,700 deductible necessary because petitioner would have a deductible under an
employer-sponsored health plan.
The undersigned will pay for Medicare Part D: SilverScript Choice (S5601-060-0)
Premium $579.99 annually from 2034 to life expectancy. This cost will have to be updated to
2019 rates. The undersigned does not find awarding the higher cost Medicap provider petitioner
recommended because it includes Medicare Part B which is an option to all Medicare Part A
recipients.
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Case 1:11-vv-00216-UNJ Document 202 Filed 04/08/19 Page 13 of 15
The undersigned will pay for visits to Dr. Wilkins twice a year until August 2034. The
yearly cost of $330.00 will have to be updated to 2019 rates. The undersigned assumes Kaiser
HMO would not pay for this cost.
The undersigned will pay for visits to Dr. Paul Emmons III, PCP two times a year, at
$223.60 annually through July 2033; then $44.72 annually from August 2034 to life expectancy.
This cost will have to be updated to 2019 rates. The undersigned assumes Kaiser HMO would
not pay for this cost.
The undersigned will pay for a visit to Bastyr University Medical Center to see an
immunologist once a year at a cost of $250.00 annually through July 2033; then $50.00 annually
from August 2034 to life expectancy. This cost will have to be updated to 2019 rates. The
undersigned assumes Kaiser HMO would not pay for this cost.
The undersigned will pay for a visit to Bastyr University Medical Center to see an
endocrinologist once a year for $151.00 annually through July 2033; then $30.30 annually from
August 2034 to life expectancy. This cost will have to be updated to 2019 rates. The
undersigned assumes Kaiser HMO would not pay for this cost.
The undersigned will not pay for a visit to Dr. Leslie S. Feinberg, a chiropractor who uses
NMT (neuromodulation technique) which is unproven as medical treatment. The undersigned
does not find NMT reasonable and necessary.
The undersigned will not pay for hyperbaric oxygen therapy (“HBOT”) as its use is not
reasonable and necessary for petitioner’s condition.
The undersigned will pay for blood-drawing twice a year for $300.00 annually through
July 2033 to check petitioner’s kidneys. This cost will have to be updated to 2019 rates.
The undersigned will not pay for ultraviolet irradiation of blood (“UBR”) as its use is not
reasonable and necessary for petitioner’s condition.
The undersigned will pay for mileage of $150.00 annually to see the endocrinologist,
immunologist, and Dr. Wilkinson from now to life expectancy.
The undersigned will not pay for case management is petitioner is not cognitively
damaged.
The undersigned will not pay for the drugs and other medications listed on pages 4 to 5 of
petitioner’s life care plan as Kaiser Permanente will pay for drugs through July 2033 and
Medicare Part D under the SilverScript Choice will pay for drugs from August 2034 through life
expectancy.
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The undersigned will not pay for acupuncture as it is not reasonable or necessary for
petitioner’s condition.
The undersigned will not pay for syringes with needles and alcohol swabs as they are not
reasonable or necessary for petitioner’s condition.
The undersigned will pay for a handheld shower head at a cost of $25.00 now and every
five years to life expectancy.
The undersigned will pay for a shower chair at a cost of $41.99 now and every 10 years
to life expectancy.
The undersigned will not provide petitioner with a companion. However, the
undersigned will provide him with assistance of light housekeeping and errands of three hours
per week and assistance with snow removal, handyman services, and lawn care at an annual cost
of $4,082.52 now to life expectancy. This cost will have to be updated to 2019 rates.
III. Medicaid Lien
Petitioner requests compensation for a Medicaid Lien of $2,173.12 to Rawlings Company
and $252.77 to Washington State Healthcare Authority. Doc 186, at 5-6. Petitioner also
requests compensation for another Medicaid lien of $465.36 which Centene-Washington-
Coordinated Care (“Centene-CC”), a Medicaid plan, paid. Doc 188-2, at 1-2.
IV. Pain and Suffering
In his motion, petitioner argues that his past pain and suffering has clearly exceeded the
statutory cap since his Tdap vaccination and he continues to experience daily pain and emotional
distress. Doc 176, at 4-5. As a result, he asserts that he is entitled to the full $250,000.00 in
pain and suffering under the Vaccine Act. Id. at 5.
Based on the evidence provided in the case, the undersigned finds an award for “pain and
suffering” to be appropriate. In determining how much to award in pain and suffering for
petitioner, the undersigned notes that any amount for future pain and suffering must be adjusted
to its “net present value.” Youngblood v. Sec’y of HHS, 32 F.3d 552 (Fed. Cir. 1994). The
undersigned finds it appropriate to use a NDR of 0.50 percent per year in calculating the net present
value of the future award. The award for future pain and suffering will be calculated based upon
$75,000.00 divided over a 31-year period, utilizing a NDR of 0.50 percent per year. Therefore, the
undersigned awards petitioner $100,000.00 for past pain and suffering and $64,255.95 as net
present value of $75,000.00 for future pain and suffering.
CONCLUSION
The undersigned finds that petitioner is entitled to an award of the following damages:
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a. Loss of earnings, including W-2 income based on respondent’s calculation subject to
the change of date as the demarcation between petitioner’s past and future damages,
employer contribution to petitioner’s 401(k) account,8 and $338,859.00 as his loss of
ownership income;
b. Past and future unreimbursable medical expenses for his entire immunologic reaction
caused by the Tdap vaccine;
c. Medicaid lien which is a compilation of the sums filed; and
d. $164,255.95 for past and future pain and suffering.
Respondent’s report regarding updated amounts and his position on reimbursement
of past health insurance premiums is due April 15, 2019.
IT IS SO ORDERED.
Dated: March 14, 2019 /s/ Laura D. Millman
Laura D. Millman
Special Master
8 Both parties agree that petitioner’s employer contributions to his 401(k) account is at five percent of
petitioner’s W-2 income. Doc 143-1, at 4 and Doc 150-2, at 3. The calculation should be consistent
with the undersigned’s ruling for W-2 income, wage growth rate, and discount rate.
15

================================================================================
DOCUMENT 4: USCOURTS-cofc-1_11-vv-00216-4
Date issued/filed: 2019-06-24
Pages: 20
Docket text: PUBLIC DECISION (Originally filed: 5/28/2019) regarding 220 DECISION of Special Master. Signed by Special Master Laura D. Millman. (et) Service on parties made.
--------------------------------------------------------------------------------
Case 1:11-vv-00216-UNJ Document 223 Filed 06/24/19 Page 1 of 20
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-216V
Filed: May 28, 2019
To be Published
*************************************
JEFFREY DAVID SIMMONS, *
*
Petitioner, *
Tdap vaccine; anaphylactoid
*
response; immune problems;
*
Addison’s-like disease; damages
v. *
decision
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Clifford J. Shoemaker, Vienna, VA, for petitioner.
Lynn C. Schlie, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION ON DAMAGES1
On April 7, 2011, petitioner filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that the tetanus toxoid-diphtheria-acellular
pertussis (“Tdap”) vaccine he received on April 11, 2008 caused him anaphylaxis, immune
dysregulation, and autoimmune disease leading to Addison’s disease. Pet. at ¶ 107. Petitioner
was 38 years old when he received Tdap vaccine. He is now 49 years old.
On October 30, 2015, the undersigned ruled that petitioner is entitled to compensation,
holding “. . . it is reasonable to connect petitioner’s entire immunologic reaction to his adverse
response [to the Tdap vaccine]. . . . [P]etitioners do not have the burden of proving a specific
biological mechanism.” Simmons v. Sec’y of HHS, No. 11-216V, 2015 WL 6778563, at *8
(Fed. Cl. Spec. Mstr. Oct. 30, 2015). Since then, the parties have been engaged in resolution of
damages. Both parties have filed life care plans but have failed to settle damages.
1 In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or
other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon
review, the undersigned agrees that the identified material fits within this definition, the undersigned will
redact such material from public access. This means the remainder of the decision will be available
to anyone with access to the Internet.

Case 1:11-vv-00216-UNJ Document 223 Filed 06/24/19 Page 2 of 20
One barrier to settlement was the calculation of petitioner’s lost wages. On July 19,
2016, petitioner’s economist Dr. Robert W. Cook submitted his first expert report stating
petitioner’s net lost income is $4,950,921.00. Doc 113-2.
On May 23, 2017, respondent filed his first expert report from his economist Dr. Patrick
F. Kennedy stating petitioner has $1,017,816.00 in loss of earnings and benefits. Doc 143-1.
During a status conference held on June 5, 2017, the undersigned gave petitioner until June 30,
2017 to file Dr. Cook’s responsive report.
On September 20, 2017, petitioner filed the first affidavit of Mr. Jeff Barrom, a Senior
Vice President with Hub International Northwest, LLC (“HUB International”). Doc 148-2.
On October 30, 2017, after three motions for an extension of time, petitioner filed Dr.
Cook’s supplemental (second) expert report based on information provided in Mr. Barrom’s first
affidavit, concluding petitioner has $3,978,303.00 in net lost income. Doc 150-2.
During a status conference held on November 17, 2017, the undersigned discussed the
parties’ expert reports (Docs 113-2, 143-1, and 150-2) and Mr. Barrom’s affidavit (Doc 148-2).
On November 20, 2017, the undersigned issued an order addressing several issues in the parties’
economic expert reports, requiring Mr. Barrom to answer respondent’s additional questions and
each party to file their supplemental economist reports. Doc 151. In the same Order, the
undersigned required the parties’ experts, in their supplemental expert reports, to use: (1) the
same date, January 1, 2018,2 as the demarcation between petitioner’s past and future damages,
subject to future changes; (2) the same lengths of life expectancy (March 8, 2049) and work life
expectancy (May 28, 2033); (3) $42,070.00 as the base W-2 income in 2009 to calculate
petitioner’s incomes from 2010 to at least March 31, 2014; and (4) Employment and Earnings for
Insurance Agencies and Brokerages (“EEIAB”) as the source for projections of petitioner’s wage
growth since the data are specific to the insurance industry. Id. at 2-3.
On January 25, 2018, petitioner filed Mr. Barrom’s second affidavit, in which Mr.
Barrom said he cannot provide copies of the material upon which he relied because the material
is “confidential and proprietary.” Doc 153-2, at 1.
On April 10, 2018, petitioner filed Dr. Cook’s supplemental (third) expert report
providing petitioner’s lost wages as “no less than $2,619,329.00 and no more than
$3,698,921.00.” Doc 159-2, at 9. On April 16, 2018, respondent filed Dr. Kennedy’s
supplemental (second) expert report in response to the undersigned’s Order of November 20,
2017 and to Mr. Barrom’s second affidavit. Doc 160-1.
In an email on April 27, 2018 to the undersigned’s law clerk, respondent stated if
petitioner intended to continue to rely on Mr. Barrom’s affidavits, he should produce the material
2 The undersigned in the March 14, 2019 ruling made the demarcation between past and future damages March 14,
2019 and not January 1, 2018.
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upon which Mr. Barrom relied in his statements supporting petitioner’s loss of earnings. On
April 27, 2018, petitioner filed a status report asserting that the record on lost wages was
complete and Mr. Barrom would not be able to provide copies of documentation upon which he
relied in his affidavits due to confidentiality and proprietary issues. Doc 161, at 1.
On April 30, 2018, the undersigned issued an order requiring respondent to file a Motion
for Discovery of the material upon which Mr. Barrom relied in his affidavits. On May 21, 2018,
respondent filed a Motion for Production of Documents Regarding Petitioner’s Lost Wages
Claim (“Motion for Production”).
On May 22, 2018, petitioner filed a Notice of Clarification and Partial Response to
Motion to Produce Documents stating that because petitioner is not in possession of the
documents and has no ownership of the documents, respondent should be seeking Third Party
Discovery as neither Mr. Barrom nor HUB International is a party in this case. Doc 165, at 1.
On June 5, 2018, respondent filed a response to Petitioner’s Notice of Clarification and
Response to Motion to Produce Documents stating that it is petitioner’s burden to prove
petitioner’s damages and “a special master cannot award over $1 million in additional lost wages
based on a third party’s interpretation of undisclosed evidence that neither party nor the Court
has seen.” Doc 167, at 2.
On the same day, the undersigned ordered each party to select by June 19, 2018 one of
three options: (1) the undersigned will hold a hearing on economic loss with Dr. Cook, Dr.
Kennedy, and Mr. Barrom as witnesses; (2) petitioner shall serve a subpoena duces tecum on
HUB International to produce the documents upon which Mr. Barrom relied in his affidavits; or
(3) the undersigned will decide the issue of lost wages on motion for a Ruling on the Record.
On June 19, 2018, after respondent filed a status report choosing option (2), petitioner
filed a status report requesting 30 days to provide the updated life care plan costs and a Motion
for Ruling on the Record incorporating all elements of compensation. The undersigned granted
petitioner’s informal motion and ordered petitioner to file a Motion for Ruling on the Record
incorporating all elements of compensation by July 18, 2018. The undersigned denied
respondent’s Motion for Production as moot.
On July 17, 2018, petitioner filed an updated summary chart of all past unreimbursable
medical expenses (Docs 173-2 and -3) and petitioner’s updated life care plan (Doc 173-4) with
an analysis of cost differences between his plan (Docs 128-2 and 173-4) and respondent’s plan
(Doc 136-6). On July 18, 2018, petitioner filed his Medicaid Lien update and a press release
regarding Mr. Barrom.
On July 18, 2018, petitioner filed a Motion for [a] Ruling on Damages Award
(“motion”).
On August 29, 2018, the case was referred to another special master for a mandatory
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settlement conference.3 By email contact with the undersigned’s law clerk and the mediator’s
law clerk, the parties on two occasions expressed a wish not to participate in mediation but to
have the undersigned rule on the record.
On October 26, 2018, respondent filed a response to petitioner’s motion (“response”).
On November 2, 2018, petitioner filed a reply to respondent’s response to petitioner’s
motion (“reply”).
On November 20, 2018, petitioner filed Exhibit 91 consisting of a final Medicaid lien
amount of $465.36. On the same date, petitioner filed a status report stating that there were no
outstanding items left for petitioner to file and the case was ripe for the undersigned’s decision
on damages. Later, on March 27, 2019, petitioner filed a status report stating that Centenne-
Washington-Coordinated Care had retained Equian to process its lien of $465.36 and the
payment of such lien should be made payable to: Equian LLC, P.O. Box 32140, Louisville, KY
40232-2140.
On December 11, 2018, the undersigned issued a Ruling on Damages (which the
undersigned withdrew on March 13, 2019 because of a dispute between the parties over whether
petitioner’s premium payments for health insurance were recoverable under the Vaccine Act).
On the same day, the undersigned removed this case from mediation.
On December 17, 2018, petitioner filed a Motion for Reconsideration, requesting the
undersigned include the updated past cost of life insurance premiums ($6,765.21) as part of the
total of updated past expenses in the damages award. Although on December 18, 2018, the
undersigned denied petitioner’s Motion for Reconsideration, on December 19, 2018, the
undersigned withdrew the denial of petitioner’s Motion for Reconsideration and issued an Order
granting the Motion for Reconsideration.
Five weeks elapsed because of a partial federal government shutdown.
On March 5, 2019, respondent filed a Response to Ruling on Damages Award, requesting
the undersigned give respondent the opportunity to reply to petitioner’s Motion for
Reconsideration and withdrawing the December 11, 2018 Ruling on Damages to reissue the
Ruling on Damages with a complete listing of specific parameters. The undersigned held a
telephonic status conference with the parties on March 13, 2019 to clarify these requests.
On March 13, 2019, the undersigned issued an Order withdrawing the December 19,
2018 Order granting petitioner’s Motion for Reconsideration and withdrawing the undersigned’s
December 11, 2018 Ruling on Damages which included $25,499.50 in past unreimbursable
medical expenses (which award was the subject of petitioner’s Motion for Reconsideration).
3 The Office of Special Masters had implemented a mandatory settlement program for certain non-autism
cases filed in 2012 or beforehand.
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On March 14, 2019, the undersigned issued a Ruling on Damages Award in a response to
the parties’ wishes.
This more specific Ruling on Damages did not include any past unreimbursable medical
expenses because the undersigned was waiting until April 15, 2019 for respondent to respond to
petitioner’s Motion for Reconsideration whether to include the $6,765.21 cost for health
insurance premiums to the amount of $25,499.50 which would then bring the total award for past
unreimbursable medical expenses to $32,264.71. The undersigned set a deadline of two days
until April 17, 2019 for petitioner to file a reply.
In addition, the undersigned set a deadline of April 15, 2019 for respondent to file a
report by April 15, 2019, updating the figures for wage loss and other items from respondent’s
prior filings, including net present value and growth rates for appropriate items. The
demarcation date for past and future damages was the date of this Ruling, March 14, 2019.
After petitioner filed a reply to respondent’s response to petitioner’s Motion for
Reconsideration, the undersigned would issue a Damages Decision including the updated figures
reflecting net present value and growth rate, and the amount of past unreimbursable medical
expenses.
On March 20, 2019, petitioner filed a Status Report Regarding Damages. Petitioner
wants the undersigned to award the deductible/Max OOP in order to obtain all the medications
petitioner says he requires. S.R. at 3-4. Petitioner also wanted companion care that petitioner
argues he needs. Id. at 4. Petitioner wants $13,608.40/year for companion care; $680.00/year
for snow removal; $9,790/year for lawn care; and $3,575/year for handyman repair for a total of
$24,653.40. Id. Respondent recommends $4,082.52/year for companion care; $480/year
through 2040 for snow removal; $4,850/year through 2040 for lawn care; and $750/year now
through 2040 for handyman repair work for a total of $10,162.52/year. Id. at 4-5.
On April 15, 2019, respondent filed a Response to Petitioner’s Motion to Reconsider Past
Out of Pocket Expenses. Respondent states that petitioner’s insurance premiums are not
compensable under 42 U.S.C. § 15(a)(1)(B)(i)-(iii), and petitioner has not proven entitlement to
compensation of his employer’s share of his health insurance premiums under § 300aa-
15(a)(3)(A). S.R. 1, 3. Moreover, respondent notes petitioner did not provide evidence of a
fringe benefit loss of what Argus Insurance, Inc., his former employer, contributed to his
premiums while he worked there. Id. at 6. Respondent points out petitioner could have made
this claim under a lost wages analysis. Id. However, respondent states since petitioner did not
provide the requisite evidence, the undersigned cannot award the $6,765.21 for past health
insurance premiums. Id. at 7.
On April 15, 2019, respondent filed Exhibit W, an updated loss of earnings calculation in
accordance with the undersigned’s March 14, 2019 Ruling on Damages Award. The total
potential economic loss is $1,079, 981.00 (including $406,642.00 for past loss of earnings
and benefits and $673,339.00 for future loss of earnings and benefits). Ex. W, at 1.
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On April 15, 2019, respondent filed a Motion for Extension of Time for two weeks to file
updated future care costs. The undersigned granted the motion.
On April 16, 2019, petitioner filed a Reply to Respondent’s Response to the Motion for
Reconsideration of Insurance Premiums, saying special masters routinely award past insurance
premiums when the petitioner’s prior insurance came from his or her employer and petitioner
was unable to work due to a vaccine injury. Reply, at 2.
On April 16, 2019, petitioner filed Exhibit 92, a compilation of petitioner’s insurance
premiums from Feb. 9, 2010 to Dec. 1, 2014, for a total of $6,096.79. Ex. 92, at 1-2.
On April 24, 2019, respondent filed his Surreply to Petitioner’s Motion to Reconsider
Past Out of Pocket Expenses. Respondent notes that the cases petitioner referenced as
supporting petitioner’s view do not support his view. Surreply, at 1-2. Respondent repeats his
assertion that petitioner’s claim for insurance premiums is not accompanied with proof such as
receipts, transaction confirmations, or credit card statements in support of his claimed payments
or that his former employer Argus paid for or contributed to his health insurance premiums. Id.
at 2.
On April 29, 2019, respondent filed a Second Motion for Extension of Time to file
updated future medical costs and proposed growth rates. The undersigned granted the motion.
On May 9, 2019, respondent filed his Status Report Regarding Future Care Items. This
damages decision relies upon respondent’s most recent status report and agrees with respondent
that petitioner is not entitled to maximum out-of-pocket medical costs (“max OOP”) since the
types of treatments and medications do not appear to be reasonably necessary and respondent has
provided for those drugs that the health insurer will not cover (hydrocortisone, aldosterone, and
Excedrine) in the status report. The undersigned also agrees that petitioner has not filed credible
proof of unreimbursed past medical premiums. On April 16, 2019, petitioner filed Exhibit 92,
consisting of “Past Expenses (Insurance Premiums”). Exhibit 92 consists of two pages of
premiums paid from February 9, 2010 to December 1, 2014 followed by two pages of e-mails
from petitioner to an insurance agent. The sum total of the two pages of premiums is $6,096.79.
Petitioner has not explained if this sum is in addition to or in lieu of the $6,765.21 petitioner
previously claimed was his out of pocket expense for health insurance premiums. This jumble
of figures and absence of interpretation make awarding petitioner the cost of past health
insurance premiums not awardable. Therefore, the undersigned DENIES petitioner’s Motion
for Reconsideration.
On May 13, 2019, the undersigned issued a Decision on Damages.
On May 22, 2019, the parties filed a Joint Motion to Withdraw May 13, 2019 Decision
on Damages and Enter Decision with Amended “Award of Compensation” Section to add an
amount for loss of ownership income and the amounts for petitioner’s blood draws and mileage
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to doctors, as well as eliminating a duplication of an award for the same Medicaid lien. The
Joint Motion also has an Appendix for the undersigned to append to the undersigned’s new
damages decision. The undersigned granted the Joint Motion to Withdraw May 13, 2019
decision on the same day.
On May 23, 2019, the undersigned issued a Decision on Damages.
On May 24, 2019, the parties filed a Joint Motion to Withdraw May 23, 2019 Decision
on Damages and Enter Amended Decision Including Previously Awarded Past Unreimbursable
Medical Expenses. The undersigned granted the Joint Motion to Withdraw the May 23, 2019
the same day.
Below, is the undersigned’s reasoning for awarding wage loss based on respondent’s
economic expert’s reasoning, discussing the parties’ positions on wage loss. The undersigned
then incorporates the wage loss award and the other elements of damages, including the minor
amount for a Medicaid lien and unreimbursable expenses.
MOTION AND FILINGS REGARDING WAGE LOSS
On July 18, 2018, petitioner filed his Motion for [a] Ruling on Damages Award.
Petitioner updated his calculation of economic loss to $4,480,530.62, consisting of wage loss of
$3,698,921.00, life care plan costs of $753,837.00, unreimbursable medical expenses of
$25,499.50, and Medicaid Lien of $2,173.12, and asserted that he is entitled to the full
$250,000.00 in pain & suffering. Doc 176.
On October 26, 2018, respondent filed his response rejecting the amount of each damage
component requested in petitioner’s motion arguing: (1) because petitioner relies upon Mr.
Barrom’s affidavits in the absence of corroborating evidence needed to support his valuation of
lost wages, respondent requested the undersigned award lost earnings in accordance with
respondent’s economist Dr. Kennedy’s analysis and projections, which is $1,019,102.00 (Doc
160-2, at 1); (2) because a petitioner cannot recover damages for a non-identified autoimmune
disease (referring to the Vaccine Act without a citation and citing Broekelschen v. Sec’y of HHS,
618 F.3d 1339 (Fed. Cir. 2010)) and Dr. Weiss4 is the only expert respondent says is qualified to
opine on petitioner’s proper treatment in this case, petitioner’s past unreimbursable medical
expenses and life care plan costs should be reduced to include adrenal insufficiency, petitioner’s
only “defined and recognized injury”; (3) the undersigned should not compensate petitioner
Medicaid Lien since he has not provided an itemized list of the services paid for by Medicaid on
his behalf; and (4) petitioner is not entitled to the maximum award of $250,000.00 for actual pain
and suffering, but respondent defers to the undersigned’s discretion. Doc 184, at 5-15.
4 On November 13, 2016, one year and two weeks after the undersigned issued a Ruling on Entitlement in
favor of petitioner, respondent filed an expert report of Dr. Roy E. Weiss, an endocrinologist, as Exhibit
M. Dr. Weiss states there is no evidence in this case that petitioner has Addison’s disease. Id. at 1. Dr.
Weiss then criticizes the costs for medications, blood tests, care givers, and transportation petitioner’s life
care planner included in the life care plan.
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On November 2, 2018, petitioner filed his reply to respondent’s response. Petitioner
argues: (1) petitioner has produced substantial underlying documentation of his lost wages
demand with three economist reports from his expert Dr. Cook and two affidavits from a fact
witness Mr. Barrom who has provided answers to all of respondent’s and the undersigned’s
questions; (2) respondent’s reliance on Broekelschen is misplaced and the undersigned made it
clear in her ruling on entitlement that petitioner does not have full-blown Addison’s disease;
therefore, petitioner is entitled to compensation for his past unreimbursable medical expenses
and life care plan costs in full; (3) petitioner is entitled to the full $250,000.00 in pain and
suffering since his suffering has already exceeded the statutory cap based on his wife’s
testimony; and (4) petitioner will provide the final Medicaid Lien as soon as possible. Doc 186,
at 1-6.
DISCUSSION
I. Lost Wages
For calculating petitioner’s lost earnings award, petitioner’s expert Dr. Cook projects the
following five categories of income into the future:
(a) Petitioner’s expected base salary as an employee of Argus Insurance Inc. (“Argus”);
(b) Petitioner’s expected K-1 income as part owner of Argus;
(c) Petitioner’s W-2 income as the result of the transfer of retiring agent accounts;
(d) Employer contributions to petitioner’s 401(k) account; and
(e) The sale value at retirement of petitioner’s ownership interest in Argus.
Doc 159, at 3.
On the other hand, respondent’s expert Dr. Kennedy believes that the only component
that should be included in the calculation is petitioner’s W-2 base salary and commissions (“W-2
income”). In his first expert report, Dr. Kennedy analyzes petitioner’s K-1 income for
illustrative purposes only. Doc 143-1, at 5. Because petitioner’s affidavit and a 2009 K-1 were
the only support at that time for petitioner’s loss of annual K-1 income from January 1, 2009 to
April 1, 2014 when Argus was sold to HUB International, Dr. Kennedy argues that he “cannot
opine that it is more likely than not that the 2009 K-1 income would have continued at the same
level in all future years.” Id. at 4.
On September 20, 2017 and January 24, 2018, petitioner filed Mr. Barrom’s two
affidavits, both of which support petitioner’s K-1 income calculation. However, Dr. Kennedy
maintains in his second expert report that no supporting documentation has been produced that
could be used to verify that petitioner’s statements and calculations for his loss of K-1 income
are accurate. Doc 160-1, at 3. For the same reason, Dr. Kennedy disagrees with including
petitioner’s retiring producer W-2 income in the calculation of petitioner’s past and future loss of
earnings. Id. at 5.
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In addition, the parties disagree on the present value methodology. While Dr. Cook uses
a two-step discounting approach, Dr. Kennedy uses a one-step net discount rate (“NDR”)
approach.
Thus, the main disagreements between the parties are: (1) whether Mr. Barrom’s
affidavits in the absence of part or all corroborating evidence are sufficient to support petitioner’s
valuation of the disputed components of his lost earnings, which include W-2 income, ownership
income,5 and retiring producer W-2 income; and (2) the method in the calculation of the present
value of petitioner’s future wage loss.
A. W-2 Income
In his first expert report, Dr. Cook takes petitioner’s base W-2 income in 2009 as
$42,000.00 and projects it into the future with the wage growth rates based on Board of Trustees
– Federal Old-Age and Survivors Insurance and Disability Insurance Trust Funds (“OASDI”).
Doc 113-2, at 11. The sum of petitioner’s W-2 income was $1,450,731.00.
In his first expert report, Dr. Kennedy uses the base W-2 income in 2009 as $42,070.00
and projects it into the future with the wage growth rates based on EEIAB, which the
undersigned ruled as the preferable basis in her Order of November 20, 2017. Doc 143-1, at 3.
The sum of petitioner’s W-2 income was $1,017,816.
In his second expert report, Dr. Cook raises the base W-2 income starting in 2010 from
$43,100.00 to $112,500.00, relying solely on Mr. Barrom’s answer to Question 6 in his first
affidavit, resulting in an increase in the sum of petitioner’s W-2 income from $1,450,731.00 in
Dr. Cook’s first report to $3,086,441.00. Doc 150-2, at 2-3. The undersigned identified this
issue in her Order of November 20, 2017:
Question 6 in Mr. Barrom’s affidavit, dated September 20, 2017, reads “Jeff’s
HUB/Argus Income 2014-today? Rather, from what income would Jeff’s
share have been calculated? If prefer to simply state what Jeff’s income would
have been today.” According to Mr. Barrom’s Answer 6, the annual income
of an insurance agent on the same track as petitioner was would be, if all
production goals were met, between $100,000.00 and $125,000.00. The
undersigned finds this answer is too vague for the parties’ experts to use as a
base annual salary from April 1, 2014, the time of sale of Argus to HUB.
While “2014-today (September 20, 2017)” is an over 3-year period of time,
Mr. Barrom did not specify in his answer what was the time period he
intended. Furthermore, no information explains why the base W-2 salary
before the sale of Argus ($42,070.00) and after (between $100,000.00 and
$125,000.00) would be so different if, as Mr. Barrom stated in his Answer 2,
5 Petitioner’s loss of ownership income includes both loss of K-1 income from January 1, 2010 to April 1,
2014 and the loss on the sale of Argus ownership interest in 2014. Doc 143-1, at 5.
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“the model of compensation for agents [at HUB] is similar to what was in
place at Argus at the time of the sale.” Dr. Cook should not have in his
second report increased petitioner’s W-2 salary to $112,500 from 2010, over
three years before the sale of Argus.
Doc 151, at 2. The undersigned instructed Dr. Cook to change his calculation of annual income
to reflect these corrections. Id.
In his third expert report, Dr. Cook relies solely on Mr. Barrom’s answer to Question 4 in
his second affidavit to run petitioner’s W-2 income from 2010 to 2017 and then based on the
2017 W-2 income projection to calculate petitioner’s future wages from 2018 to 2033. While
Mr. Barrom stated in his first affidavit that “it is difficult to speculate exact incomes” and
provided the estimated annual earnings range for 2017 of $100,000.00 - $125,000.00 (Doc 148-
2, at 2), he provides in his second affidavit a spreadsheet showing an estimated 2010
compensation of $62,070.00 growing to an estimated $121,024.00 by 2017 without providing
any database or supporting documentation (Doc 153-2, at 2-3). Dr. Cook adopts Mr. Barrom’s
projections without providing any further explanation or analysis. The undersigned finds that
Mr. Barrom’s projections of petitioner’s W-2 income from 2010 to 2017 and Dr. Cook’s
adoption of Mr. Barrom’s projections in his third expert report are speculative and inconsistent
with petitioner’s historical earnings and the industry data.
In his second expert report, Dr. Kennedy states that “while the information provided by
Mr. Barrom appears to support some of [p]etitioner’s damages calculations, no supporting
documentation has been produced that could be used to verify that his statements and
calculations are accurate.” Doc 160-1, at 3. Because petitioner is claiming a level of wages
and wage growth that are materially higher than statistical earnings data for insurance agents in
general and are inconsistent with petitioner’s historical wage growth prior to vaccination, Dr.
Kennedy argues that it is important to understand how Mr. Barrom arrived at his projections and
what documentation or information upon he relied in making his projections. Id. at 4.
In her Order of June 5, 2018, the undersigned provided petitioner with an option of
serving a subpoena duces tecum on HUB International to produce the documents upon which
Mr. Barrom relied in his affidavits; however, petitioner chose to file a motion for ruling on the
record. The undersigned agrees with Dr. Kennedy that it is important for a damages expert to
verify the information that forms the basis of a loss calculation, especially when petitioner’s
claimed net losses of nearly $4 million are based on projected wages that are much higher than
his prior years’ earnings as well as the statistical earnings data for insurance agents as collected.
The undersigned finds that the underlying material upon which Mr. Barrom based his projections
is necessary for the undersigned to reach a fair and well-informed decision concerning
petitioner’s W-2 income. Therefore, in the absence of petitioner’s filing this material, the
undersigned rules in favor of respondent on the calculation of petitioner’s W-2 income.
B. Ownership Income
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Effective January 1, 2009, petitioner purchased a 4.99% ownership interest in Argus and
executed a promissory note for the $550,310.48 purchase price payable to Argus. Petitioner
received $118,366.00 in business income via K-1 (“K-1 income” or “business income”) from
Argus in 2009. On April 1, 2014, HUB International acquired Argus and all holders of
promissory notes were required to pay them off with the proceeds from the sale to HUB
International. Doc 148-2, at 2. The sale price of Argus to HUB International is confidential.
Id. In his first affidavit, Mr. Barrom provided the exact amount of gross distributions from
petitioner’s 4.99% ownership shares for 2010 through 2014 in the absence of any supporting
documents. Id. at 1. In his second affidavit, Mr. Barrom stated that petitioner would have
received the full approximate gross distribution for 2014 regardless of the sale of Argus in April
2014. Doc 153-2, at 2.
In his second expert report, Dr. Cook agrees with Dr. Kennedy that the calculation for
petitioner’s K-1 income should not increase annually for the duration of petitioner’s work life
expectancy since January 1, 2010. Instead it should terminate on April 1, 2014 when HUB
International acquired Argus. Doc 150-2, at 3. In both his second and third expert reports, Dr.
Cook adopts the exact amount of gross distributions that Mr. Barrom provided, resulting in
$499,344.00 of petitioner’s lost K-1 income before tax for 2010 through 2014.
In his first expert report, for illustrative purposes only, Dr. Kennedy analyzes petitioner’s
lost business income from January 1, 2010 to April 2014, using petitioner’s annual K-1 income
of $118,366.00 for 2009 and adjusting the annual compensation at the wage growth rates based
on EEIAB. Doc 143-1, at 5. Petitioner’s potential lost K-1 income after tax is $432,123.00.
Doc 143-5, at 3. Dr. Kennedy then projects petitioner’s promissory note payments6 as an
offset to his potential damages and adds petitioner’s loss on sale of Argus ownership interest in
2014,7 resulting in a total of $338,859.00 as petitioner’s potential economic loss of his
ownership income after tax. In both his expert reports, Dr. Kennedy believes that a single K-1
for 2009 is not sufficient to determine petitioner’s loss of business income for 2010 through
April 2014. Doc 143-1, at 5 and Doc 160-1, at 1. Therefore, Dr. Kennedy does not include
petitioner’s potential economic loss of his ownership income in his calculation of petitioner’s
lost earnings award.
Because petitioner owned a 4.99% ownership interest in Argus, received a distribution in
6 Petitioner took out a $550,310.48 loan to acquire Argus shares, effective January 1, 2009, with monthly
payments of $4,946.35 or $59,356.00 annually. Doc 143-5, at 3. Dr. Kennedy estimates that
petitioner’s payments ended upon the sale of Argus to HUB International in April 2014. Id.
7 Because the sale price of Argus to HUB International is confidential, Dr. Kennedy projected petitioner’s
loss on sale of Argus ownership interest in 2014 by applying a capitalization rate to net income as a
common valuation tool. “2009 K-1 income was $118,366.00. Restated to 2014 dollars, annual K-1
income is $138,777.00. K-1 Income / Capitalization Rate = Ownership Value ($138,777.00 / 24% =
$578,238.00).” Doc 143-1, at 5 n.4. From the $578,238.00 of Argus share value, Dr. Kennedy
deducted the remaining principal balance on the note payable for a net pre-tax amount of $165,143.00.
Id. at 5. In his second expert report, Dr. Cook agrees with Dr. Kennedy’s methodology. Doc 150-2, at
4.
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2009, and provided his 2009 K-1, the undersigned finds an award for petitioner’s loss of
ownership income reasonable in this case. However, because Mr. Barrom will not provide any
documentation to support his projections of petitioner’s business income for 2010 through 2014,
the calculation for petitioner’s loss of business income should be based on petitioner’s K-1
income of $118,366.00 for 2009 and the wage growth rates according to EEIAB. In other
words, the undersigned agrees with Dr. Kennedy’s calculation of petitioner’s potential lost
ownership income. Doc 143-5, at 1-4. Therefore, the undersigned rules that petitioner is
entitled to $338,859.00 as his loss of ownership income.
C. Retiring Producer W-2 Income
Unlike petitioner’s K-1 income, his claimed retiring producer income was not included in
petitioner’s 2009 tax documents. Petitioner claims that he was going to be compensated for
retiring producer income in 2010. Doc 131-2, at 2. In his first affidavit, Mr. Barrom stated that
“I no longer have records for such things but [petitioner] is honest and the retiring or transition
plan he submitted indicated payments in 2010, so yes he would have been paid the applicable
renewal commission that Argus used at that time, which would have been 25% had he met the
previous year new business goal and if not it would have been 20%.” Doc 148-2, at 3. Mr.
Barrom later confirmed that had petitioner been employed at Argus in 2010, he would have
received commission income for the retiring producer accounts that he had been working on in
2008 and 2009 and the retiring producer income would have been reported in his 2010 W-2.
Doc 153-2, at 3. According to Mr. Barrom’s affidavits, it takes one to three years for the
transitioning agent to receive income from retiring agent accounts. However, petitioner’s
evidence explaining how the commission on retiring producer accounts would be paid to the
retiring partner (“RP”) and the transitioning partner (“TP”) says otherwise:
Beginning with policies which have an effective date of 1/1/2009 and later,
RP will receive .20 points of the producer portion of the agency commission
with the TP receiving the remainder of the producer portion of the
commission.
Doc 113-3, at 7. This document shows that petitioner would have received income from the
retiring producer accounts in 2009.
While Mr. Barrom indicated in his first affidavit, Answer 9, that he no longer has records
to support additional transfers after 2010, he provided in his second affidavit exact amounts of
retiring producer income petitioner would have been paid for 2010 through 2014 without any
supporting evidence. Doc 153-2, at 4. In his third expert report, Dr. Cook adopts Mr.
Barrom’s projections without independently evaluating the underlying evidence and assumes that
this level of income would have continued through petitioner’s remaining work life expectancy.
Doc 159-2, at 12-13. As Dr. Kennedy points out in his second expert report, it is important to
see how much the retiring producer accounts that were to be assigned to petitioner actually
generated in commissions and how those accounts may have changed over time. Doc 160-1, at
5. The undersigned agrees with Dr. Kennedy’s opinion. There was no evidence that retiring
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producer income was ever paid to petitioner in the manner described in the Argus policy
provided in petitioner’s evidence (Doc 113-3). Since the undersigned cannot award damages
based on speculation, she finds that petitioner is not entitled to the compensation for retiring
producer income.
D. Present Value Methodology
The parties disagree on the method of calculating the present value of petitioner’s future
wage loss. While Dr. Cook uses a two-step discounting approach, Dr. Kennedy uses a one-step
net discount rate (“NDR”) approach. The two-step discounting approach comprises two parts:
(1) future wages are grown annually at the appropriate rate for wage growth and (2) future values
are discounted to present day dollars at the appropriate projected interest rate. The NDR
approach incorporates both future wage growth and future interest rates into a single, one-step
calculation. Thus, if the same assumptions are used regarding interest rates and wage inflation,
the results under both approaches should be consistent.
Dr. Cook’s present value approach depends on the current yields on U.S. Treasury Notes
and Bonds, which are dynamic. Doc 159-2, at 6. Dr. Kennedy’s analysis implies a 3.50
percent annual wage growth and a 4.00 percent annual discount growth, which gives him a 0.50
percent fixed annual NDR. Doc 160-1 at 2. Dr. Cook argues that Dr. Kennedy’s reliance on a
fixed NDR is inappropriate since the interest rates available to petitioner are the same rates
available to all petitioners but the wage growth rate for all petitioners varies. Doc 159-2, at 7.
However, because the wage growth and interest rates are more difficult to project as
individual data series, Dr. Kennedy believes that “the net relationship between the two series is
more stable and can be more reliably projected over longer periods of time.” Doc 160-1, at 1-2.
The NDR approach also includes projected wage inflation. Id. at 2. Dr. Kennedy provides an
example in his second expert report to show that the NDR approach is more beneficial to
petitioner than the two-step discounting approach, if both approaches assume that the appropriate
wage inflation is 3.50 percent per year and the appropriate interest rate is 4.00 percent. Id. at 2-
3.
Thus, the disagreement between the parties is not which present value method is better
academically but what rates should be chosen in this case. The undersigned agrees with
respondent that Dr. Cook’s use of current dynamic interest rates alone as the discount rate is not
accurate for a projection of a future loss of earnings over a long period of years. The
undersigned finds it is reasonable for Dr. Kennedy not to rely too heavily on the recent historical
or current interest rates since it would result in an understated net discount rate and it is
appropriate to examine statistics over a longer period in calculating the NDR because a longer
period includes the series of expansions and recessions that the economy has experienced. Doc
143-1, at 9. The undersigned also thinks it is important to take consumer price inflation into
account over a long period of time as Dr. Kennedy does in his analysis. Id. at 8. Therefore, the
undersigned rules in favor of respondent on the issue of present value methodology.
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II. Life Care Plans
On September 28, 2016, petitioner filed his original life care plan from his life care
planner Ms. Lynn Trautwein. Doc 128. Subsequently, respondent filed a report from Dr. Roy
Weiss rejecting all care items in petitioner’s life care plan indicated for Addison’s disease since
respondent asserts through Dr. Weiss’s post-entitlement ruling report that petitioner did not have
Addison’s disease. Doc 136-1, at 2-3. Respondent’s life care planner Ms. Linda Curtis relied
upon Dr. Weiss’ report to deny a substantial part of petitioner’s life care plan. Doc 183-1.
Petitioner argues in his motion that Dr. Weiss’ report was unnecessary as the undersigned
and the parties were well aware of the nature of petitioner’s diagnoses. Doc 176, at 6. In his
response, respondent claims that Dr. Weiss, as a board-certified endocrinologist, is the only
expert qualified to opine on the proper treatment of petitioner, and petitioner’s life care plan
should be based on the diagnosis of adrenal insufficiency, petitioner’s only defined and
recognized injury in this case. Doc 184, at 13.
The undersigned finds respondent’s argument against petitioner’s entitlement to
compensation for his entire immunologic reaction is contrary to law. The undersigned made it
clear in her ruling on entitlement that petitioner does not have full-blown Addison’s disease,
which is why petitioner’s treating doctor, Dr. Richard Wilkinson, diagnosed him with adrenal
insufficiency. Simmons v. Sec’y of HHS, No. 11-216V, 2015 WL 6778563, at *8 (Fed. Cl.
Spec. Mstr. Oct. 30, 2015). Respondent’s expert Dr. Levinson believed petitioner had an
adverse reaction to Tdap, but he did not know the mechanism involved and labeled petitioner’s
adverse reaction a hypersensitivity reaction, which the undersigned accepted in her ruling on
entitlement. Id. at *7-8. The undersigned held that a blurring of the distinctions among the
categories of adverse reaction does not preclude a finding of entitlement to damages. Id. at *8.
Therefore, the undersigned finds petitioner is entitled to compensation for his entire
immunologic reaction which Tdap vaccine caused.
III. Medicaid Lien
The undersigned awards $252.77 for reimbursement of a Washington State Healthcare
Authority lien, which amount is set forth in the attached Appendix A. The undersigned award
$465.36 for reimbursement of a Centene-Washington-Coordinated Care (“Centene-CC”) lien,
which amount is set forth in the attached Appendix A.
IV. Pain and Suffering
In his motion, petitioner argues that his past pain and suffering has clearly exceeded the
statutory cap since his Tdap vaccination and he continues to experience daily pain and emotional
distress. Doc 176, at 4-5. As a result, he asserts that he is entitled to the full $250,000.00 in
pain and suffering under the Vaccine Act. Id. at 5.
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Based on the evidence provided in the case, the undersigned finds an award for “pain and
suffering” to be appropriate. In determining how much to award in pain and suffering for
petitioner, the undersigned notes that any amount for future pain and suffering must be adjusted
to its “net present value.” Youngblood v. Sec’y of HHS, 32 F.3d 552 (Fed. Cir. 1994). The
undersigned finds it appropriate to use a NDR of 0.50 percent per year in calculating the net present
value of the future award. The award for future pain and suffering will be calculated based upon
$75,000.00 divided over a 31-year period, utilizing a NDR of 0.50 percent per year. Therefore, the
undersigned awards petitioner $100,000.00 for past pain and suffering and $64,255.95 as net
present value of $75,000.00 for future pain and suffering.
AWARD OF COMPENSATION
The undersigned finds reasonable and necessary under 42 U.S.C. § 300aa-15(a) the
following damages, and awards compensation for projected life care expenses, wage loss, loss of
ownership income, pain and suffering, and the reimbursement of Medicaid liens as set forth
below and reflected in the attached chart, and incorporated herein, Appendix A: Items of
Compensation for Jeffrey David Simmons:
1. Health Care Premiums – For Kaiser Permanente VistaPlus Silver Plan. Beginning
on the date of judgment, an annual amount of $8,076.00 to be paid up to the
anniversary of the date of judgment in year 2034, increasing at the rate of five percent
(5%), compounded annually from the date of judgment.
2. Medicare Part B Deductible – To cover vaccine-related medical costs once
petitioner is eligible for Medicare. Beginning on the anniversary of the date of
judgment in year 2034, an annual amount of $185.00 to be paid for the remainder of
petitioner’s life, increasing at the rate of five percent (5%), compounded annually
from the date of judgment.
3. Medicare Part D Plan – Through Cigna-Health Spring RX. Beginning on the
anniversary of the date of judgment in year 2034, an annual amount of $1,046.20 to be
paid for the remainder of petitioner’s life, increasing at the rate of five percent (5%),
compounded annually from the date of judgment.
4. Doctors’ Visits – Twice yearly visits to Dr. Wilkinson. Beginning on the date of
judgment, an annual amount of $330.00 to be paid up to the anniversary of the date of
judgment in year 2034, increasing at the rate of five percent (5%), compounded
annually from the date of judgment.
5. Doctors’ Visits – Twice yearly visits to Dr. Emmons for primary care. Beginning
on the date of judgment, an annual amount of $270.00 to be paid up to the anniversary
of the date of judgment in year 2034. Thereafter, beginning on the anniversary of the
date of judgment in year 2034, an annual amount of $54.00 to be paid for the
remainder of petitioner’s life, all amounts increasing at the rate of five percent (5%),
compounded annually from the date of judgment.
6. Doctors’ Visits – An annual visit to an immunologist at Bastyr University Medical
Center. Beginning on the date of judgment, an annual amount of $320.00 to be paid
up to the anniversary of the date of judgment in year 2034. Thereafter, beginning on
the anniversary of the date of judgment in year 2034, an annual amount of $64.00 to
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be paid for the remainder of petitioner’s life, all amounts increasing at the rate of five
percent (5%), compounded annually from the date of judgment.
7. Doctors’ Visits – An annual visit to an endocrinologist at Bastyr University Medical
Center. Beginning on the date of judgment, an annual amount of $320.00 to be paid
up to the anniversary of the date of judgment in year 2034, an annual amount of
$64.00 to be paid for the remainder of petitioner’s life, all amounts increasing at the
rate of five percent (5%), compounded annually from the date of judgment.
8. Blood Draws – Twice yearly blood draws. Beginning on the date of judgment, an
annual amount of $360.00 to be paid up to the anniversary of the date of judgment in
year 2034, increasing at the rate of five percent (5%), compounded annually from the
date of judgment.
9. Mileage to Doctors’ Visits – Beginning on the date of judgment, an annual amount of
$150.00 to be paid for the remainder of petitioner’s life, increasing at the rate of four
percent (4%), compounded annually from the date of judgment.
10. Drugs – Hydrocortisone. Beginning on the date of judgment, an annual amount of
$252.48 to be paid up to the anniversary of the date of judgment in year 2034,
increasing at the rate of five percent (5%), compounded annually from the date of
judgment.
11. Drugs – Aldosterone. Beginning on the date of judgment, an annual amount of
$582.00 to be paid up to the anniversary of the date of judgment in year 2034,
increasing at the rate of five percent (5%), compounded annually from the date of
judgment.
12. Drugs (OTC) – Excedrin. Beginning on the date of judgment, an annual amount of
$38.91 to be paid for the remainder of petitioner’s life, increasing at the rate of four
percent (4%), compounded annually from the date of judgment.
13. Handheld Shower – Beginning on the date of judgment, an annual amount of $25.00
for an initial purchase. Thereafter, beginning on the first anniversary of the date of
judgment, an annual amount of $5.00 to be paid for the remainder of petitioner’s life,
increasing at the rate of four percent (4%), compounded annually from the date of
judgment.
14. Shower Chair – Beginning on the date of judgment, an annual amount of $41.99 for
an initial purchase. Thereafter, beginning on the first anniversary of the date of
judgment, an annual amount of $4.20 to be paid for the remainder of petitioner’s life,
increasing at the rate of four percent (4%), compounded annually from the date of
judgment.
15. Companion Care – To assist with light housekeeping and errands at the cost of
$28.95 per hour for three hours per week. Beginning on the date of judgment, an
annual amount of $4,516.20 to be paid for the remainder of petitioner’s life,
increasing at the rate of four percent (4%), compounded annually from the date of
judgment.
16. Snow Removal – At a cost of $100.00 per visit. Beginning on the date of judgment,
an annual amount of $600.00 to be paid up to the anniversary of the date of judgment
in year 2041, increasing at the rate of four percent (4%), compounded annually from
the date of judgment.
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17. Lawn Care – At a cost of $285.00 per week (for mowing five months per year).
Beginning on the date of judgment, an annual amount of $5,700.00 to be paid up to
the anniversary of the date of judgment in year 2041, increasing at the rate of four
percent (4%), compounded annually from the date of judgment.
18. Handyman – At a cost of $85.00 per hour. Beginning on the date of judgment, an
annual amount of $850.00 to be paid up to the anniversary of the date of judgment in
year 2041, increasing at the rate of four percent (4%), compounded annually from the
date of judgment.
19. Wage Loss - $1,079,981.00 consisting of Past Wage Loss of Earnings and Benefits of
$406,642.00 and Future Loss of Earnings and Benefits of $673,339.00, which amount
is set forth in the attached Appendix A.
20. Loss of Ownership Income - $338,859.00, which amount is set forth in the attached
Appendix A.
21. Pain and Suffering - $164,255.95, consisting of $100,000.00 for past pain and
suffering and $64,255.95 as net present value of $75,000.00 for future pain and
suffering, which amount is set forth in the attached Appendix A.
22. Medicaid Lien - $252.77 for reimbursement of a Washington State Healthcare
Authority lien, which amount is set forth in the attached Appendix A.
23. Medicaid Lien - $465.36 for reimbursement of a Centene-Washington-Coordinated
Care (“Centene-CC”) lien, which amount is set forth in the attached Appendix A.
24. Past Unreimbursable Expenses - $25,599.50 for reimbursement for past
unreimbursable expenses, which amount is set forth in the attached Appendix A.
Form of Compensation Award
The undersigned finds reasonable and necessary under 42 U.S.C. § 300aa-15(a) the
following damages for projected life care expenses, wage loss, loss of ownership income, pain
and suffering, and Medicaid liens, as set forth in the attached Appendix A. The compensation
shall be made through a combination of lump sum payments and future annuity payments as set
forth below:
1. A lump sum payment in the amount of $1,631,128.03, which amount represents
compensation for first year life care expenses ($22,432.58), lost wages ($1,079,981.00),
lost ownership income ($338,859.00), pain and suffering ($164,255.95), and past
unreimbursable expenses ($25,599.50) shall be payable to petitioner, Jeffrey David
Simmons, as soon as practicable after entry of judgment, as provided for in Appendix A.
2. A lump sum payment of $252.77, representing compensation for satisfaction of the State
of Washington Medicaid lien, payable jointly to petitioner and the Washington State
Healthcare Authority, and mailed to:
Washington State
Health Care Authority
COB/Casualty Unit
P.O. Box 45561
Olympia, Washington 98504-5561
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Case 1:11-vv-00216-UNJ Document 223 Filed 06/24/19 Page 18 of 20
ID# 201379985WA
Petitioner agrees to endorse this payment to the Washington State Healthcare Authority.
3. A lump sum payment of $465.36, representing compensation for satisfaction of the
“Centene-CC” lien, payable jointly to petitioner and Equian LLC, and mailed to:
Equian LLC
P.O. Box 32140
Louisville, KY 40232-2140
Equian File No.: 973640-179618
Attn: Meagan Sloan
Petitioner agrees to endorse this payment to the Equian LLC.
4. An amount sufficient to purchase an annuity contract,8 subject to the conditions described
below, that will provide payments for the life care items set forth above in the Award on
Compensation and illustrated in Appendix A: Items of Compensation for Jeffrey David
Simmons, attached hereto, paid to the life insurance company9 from which the annuity
will be purchased.10 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, Jeffrey
David Simmons, only so long as Jeffrey David Simmons is alive at the time a particular
payment is due.11
Growth Rate
As set forth and in Appendix A, attached hereto, the growth rates to be applied for items
of compensation payable through the annuity shall be four percent (4%) for non-medical life care
items and five percent (5%) for medical items, compounded annually from the date of judgment.
CONCLUSION
The undersigned finds that petitioner is entitled to an award of the above damages.
8 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life
insurance companies.
9 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 Ratings: 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 Claims Paying
Ability Rating: AA-, AA, AA+, or AAA.
10 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.
11 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 Appendix A described only the total yearly sum to
be paid to petitioner and do not require that the payment be made in one annual installment.
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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.12
IT IS SO ORDERED.
Dated: May 28, 2019 /s/ Laura D. Millman
Laura D. Millman
Special Master
12 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly,
filing a notice renouncing the right to seek review.
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Case 1:11-vv-00216-UNJ Document 223 Filed 06/24/19 Page 20 of 20
Appendix A: Items of Compensation for Jeffrey David Simmons Page 1 of 1
Lump Sum
Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-15 Years 16-22 Years 23-Life
2019 2020-2033 2034-2040 2041-Life
Insurance Premium 5% M 8,076.00 8,076.00
Medicare Part B Deductible 5% 185.00 185.00
Medicare Part D 5% M 1,046.20 1,046.20
Primary Care Dr. Wilkinson 5% 330.00 330.00
Primary Care Dr. Emmons 5% * 270.00 270.00 54.00 54.00
Immunology 5% * 320.00 320.00 64.00 64.00
Endocrinology 5% * 320.00 320.00 64.00 64.00
Blood Work 5% * 360.00 360.00
Mileage: Endocrinologist,
Immunologist, Dr. Wilkinson 4% 150.00 150.00 150.00 150.00
Hydrocortisone 5% * 252.48 252.48
Aldosterone 5% * 582.00 582.00
Excedrin 4% 38.91 38.91 38.91 38.91
Handheld Shower 4% 25.00 5.00 5.00 5.00
Shower Chair 4% 41.99 4.20 4.20 4.20
Companion Care 4% M 4,516.20 4,516.20 4,516.20 4,516.20
Snow Removal 4% M 600.00 600.00 600.00
Lawn Care 4% M 5,700.00 5,700.00 5,700.00
Handyman 4% M 850.00 850.00 850.00
Lost Wages 1,079,981.00
Lost Ownership Income 338,859.00
Pain and Suffering 164,255.95
Medicaid Lien: WA Healthcare
Authority 252.77
Medicaid Lien: Centene-CC
(Equian) 465.36
Past Unreimbursable Expenses 25,599.50
Annual Totals 1,631,846.16 22,374.79 13,277.51 6,127.51
Note: Compensation Year 1 consists of the 12 month period following the date of judgment.
Compensation Year 2 consists of the 12 month period commencing on the first anniversary of the date of judgment.
As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for Yr 1 life care
expenses ($22,432.58), lost wages ($1,079,981.00,), lost ownership income ($338,859.00), pain and suffering ($164,255.95)
and past unreimbursable expenses ($25,599.50): $1,631,128.03.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and Washington State Healthcare Authority, as reimbursement of the State's Medicaid lien: $252.77.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and Equian LLC, as reimbursement of the Centene-CC Medicaid lien: $465.36.
Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the date of judgment.
Annual amounts shall increase at the rates indicated above in column G.R., compounded annually from the date of judgment.
Items denoted with an asterisk (*) covered by health insurance and/or Medicare.
Items denoted with an "M" payable in twelve monthly installments totaling the annual amount indicated.