VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-00689 Package ID: USCOURTS-cofc-1_17-vv-00689 Petitioner: Victor Walker Filed: 2018-01-26 Decided: 2018-10-17 Vaccine: influenza Vaccination date: 2016-03-21 Condition: Guillain-Barre Syndrome (GBS) Outcome: compensated Award amount USD: 357185 AI-assisted case summary: Victor Walker filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he suffered Guillain-Barre Syndrome (GBS) as a result of his March 21, 2016 influenza vaccination. The respondent conceded that Mr. Walker was entitled to compensation, as his condition met the criteria for a Table injury with a presumption of causation. The case proceeded to a damages decision based on a proffer. The respondent recommended an award for lost earnings, pain and suffering, and past unreimbursable expenses, as well as future life care items to be provided through an annuity. The parties agreed to the terms of the award. Chief Special Master Dorsey issued a decision awarding Mr. Walker a lump sum payment of $357,185.02, which included compensation for life care expenses, lost earnings, pain and suffering, and past unreimbursable expenses. Additionally, an amount sufficient to purchase an annuity contract for future life care items was awarded. The decision was dated October 17, 2018. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_17-vv-00689-0 Date issued/filed: 2018-04-27 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 1/26/2018) regarding 23 Ruling on Entitlement. Signed by Chief Special Master Nora Beth Dorsey. (rp) Service on parties made. -------------------------------------------------------------------------------- Case 1:17-vv-00689-UNJ Document 29 Filed 04/27/18 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-689V Filed: January 26, 2018 UNPUBLISHED VICTOR WALKER, Special Processing Unit (SPU); Petitioner, Ruling on Entitlement; Concession; v. Table Injury; Influenza (Flu) Vaccine; Guillain-Barre Syndrome (GBS) SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Howard Dale Mishkind, Mishkind Law Firm Co., L.P.A., Beechwood, OH, for petitioner. Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 Dorsey, Chief Special Master: On May 24, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that he suffered Guillain-Barre Syndrome (“GBS”) as a result of his March 21, 2016 influenza (“flu”) vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 26, 2018, respondent filed his Rule 4(c) report in which he concedes that petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, respondent states “that petitioner has satisfied the criteria set forth in the recently revised Vaccine Injury Table (Table) and the Qualifications and Aids to Interpretation (QAI), which afford petitioner a presumption of causation if the onset of 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). 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. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:17-vv-00689-UNJ Document 29 Filed 04/27/18 Page 2 of 2 GBS occurs between three and forty-two days after a seasonal flu vaccination and there is no apparent alternative cause. 42C.F.R. § 1003.(a)(XIV)(D), (c)(15).” Id. at 5. In view of respondent’s position and the evidence of record, the undersigned finds that petitioner is entitled to compensation. IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_17-vv-00689-1 Date issued/filed: 2018-10-17 Pages: 8 Docket text: PUBLIC DECISION (Originally filed: 07/23/2018) regarding 37 DECISION Stipulation/Proffer (Signed by Chief Special Master Nora Beth Dorsey. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:17-vv-00689-UNJ Document 49 Filed 10/17/18 Page 1 of 8 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-689V Filed: July 23, 2018 UNPUBLISHED VICTOR WALKER, Special Processing Unit (SPU); Damages Decision Based on Proffer; Petitioner, Influenza (Flu) Vaccine; Guillain- v. Barre Syndrome (GBS) SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Howard Dale Mishkind, Mishkind Law Firm Co, L.P.A. Beachwood, OH, for petitioner. Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 Dorsey, Chief Special Master: On May 24, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that he suffered Guillain-Barre Syndrome (“GBS”) as a result of his March 21, 2016 influenza (“flu”) vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 26, 2018, a ruling on entitlement was issued, finding petitioner entitled to compensation for GBS. On July 23, 2018, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $$103,651.14 for lost earnings, $230,000.00 in actual and projected pain and suffering, and $16,347.00 for past unreimbursable expenses, as well as future annuity payments to provide for life care items listed in an attached chart. Proffer at 1-3. In the Proffer, 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). 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. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:17-vv-00689-UNJ Document 49 Filed 10/17/18 Page 2 of 8 respondent represented that petitioner agrees with the proffered award. Based on the record as a whole, the undersigned finds that petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner: • A lump sum payment of $357,185.02, representing compensation for life care expenses expected to be incurred during the first year after judgment ($7,186.88), lost earnings ($103,651.14), pain and suffering ($230,000.00), and past unreimbursable expenses ($16,347.00), in the form of a check payable to petitioner, Victor Walker; and • An amount sufficient to purchase an annuity contract as described in Section II(B) of the proffer. This represents compensation for all damages that would be available under § 300aa-15(a) The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:17-vv-00689-UNJ Document 49 Filed 10/17/18 Page 3 of 8 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS VICTOR WALKER, Petitioner, v. No. 17-689V Chief Special Master Dorsey SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. RESPONDENT'S PROFFER ON AWARD OF COMPENSATION I. Items of Compensation A. Life Care Items For the purposes of this proffer, the term “vaccine-related” is as described in the respondent’s Rule 4(c) Report, filed January 26, 2018. All items of compensation identified as life care items are supported by the evidence, and are illustrated by the chart entitled Appendix A: Items of Compensation for Victor Walker, attached hereto as Tab A.1 Respondent proffers that Victor Walker should be awarded all items of compensation set forth as life care items and illustrated by the chart attached at Tab A. Petitioner agrees. B. Lost Earnings The parties agree that based upon the evidence of record, Victor Walker has suffered a past loss of earnings and will suffer a loss of earnings in the future. Therefore, respondent proffers that Victor Walker should be awarded lost earnings as provided under the Vaccine Act, 1 The chart at Tab A illustrates the annual benefits payable for life care items. The annual benefit years run from the date of judgment up to the first anniversary of the date of judgment, and every year thereafter up to the anniversary of the date of judgment. -1- Case 1:17-vv-00689-UNJ Document 49 Filed 10/17/18 Page 4 of 8 42 U.S.C. § 300aa-15(a)(3)(A). Respondent proffers that the appropriate award for Victor Walker’s lost earnings is $103,651.14. Petitioner agrees. C. Pain and Suffering Respondent proffers that Victor Walker should be awarded $230,000.00 in actual and projected pain and suffering. This amount reflects that any award for projected pain and suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. D. Past Unreimbursable Expenses Evidence supplied by petitioner documents Victor Walker’s expenditure of past unreimbursable expenses related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $16,347.00. II. Form of the Award The parties recommend that the compensation provided to Victor Walker should be made through a combination of lump sum payments and future annuity payments as described below, and request that the Chief Special Master’s decision and the Court’s judgment award the following:2 A. A lump sum payment of $357,185.02, representing compensation for life care expenses expected to be incurred during the first year after judgment ($7,186.88), lost earnings ($103,651.14), pain and suffering ($230,000.00), and past unreimbursable expenses ($16,347.00), in the form of a check payable to petitioner, Victor Walker. 2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering. -2- Case 1:17-vv-00689-UNJ Document 49 Filed 10/17/18 Page 5 of 8 B. An amount sufficient to purchase an annuity contract,3 subject to the conditions described below, that will provide payments for the life care items, as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company4 from which the annuity will be purchased.5 Compensation for Year Two (beginning on the first anniversary of the date of judgment) and all subsequent years shall be provided through respondent’s purchase of an annuity, which annuity shall make payments directly to petitioner, Victor Walker, only so long as Victor Walker is alive at the time a particular payment is due. At the Secretary’s sole discretion, the periodic payments may be provided to petitioner in monthly, quarterly, annual or other installments. The “annual amounts” set forth in the chart at Tab A describe only the total yearly sum to be paid to petitioner and do not require that the payment be made in one annual installment. 1. Growth Rate Respondent proffers that a four percent (4%) growth rate should be applied to all non- medical life care items, and a five percent (5%) growth rate should be applied to all medical life 3 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies. 4 The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from two of the following rating organizations: a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s; b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa; c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or AAA; d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA, AA+, or AAA. -3- Case 1:17-vv-00689-UNJ Document 49 Filed 10/17/18 Page 6 of 8 care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid through annuity payments should grow as follows: four percent (4%) compounded annually from the date of judgment for non-medical items, and five percent (5%) compounded annually from the date of judgment for medical items. Petitioner agrees. 2. Life-contingent annuity Petitioner will continue to receive the annuity payments from the Life Insurance Company only so long as he, Victor Walker, is alive at the time that a particular payment is due. Written notice shall be provided to the Secretary of Health and Human Services and the Life Insurance Company within twenty (20) days of Victor Walker’s death. 3. Guardianship Petitioner is a competent adult. Evidence of guardianship is not required in this case. III. Summary of Recommended Payments Following Judgment A. Lump Sum paid to petitioner, Victor Walker: $357,185.02 B. An amount sufficient to purchase the annuity contract described above in section II.B. 5 Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case consistent with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of Records, No. 09-15-0056. -4- Case 1:17-vv-00689-UNJ Document 49 Filed 10/17/18 Page 7 of 8 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division HEATHER L. PEARLMAN Assistant Director Torts Branch, Civil Division /s/Linda S. Renzi LINDA S. RENZI Senior Trial Counsel Torts Branch, Civil Division U. S. Department of Justice P.O. Box l46, Benjamin Franklin Station Washington, D.C. 20044-0146 Direct dial: (202) 616-4133 Dated: July 23, 2018 -5- Case 1:17-vv-00689-UNJ Document 49 Filed 10/17/18 Page 8 of 8 Appendix A: Items of Compensation for Victor Walker Page 1 of 1 Lump Sum Compensation Compensation Compensation ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-6 Years 7-Life 2018 2019-2023 2024-Life Medicare Part B Deductible 5% 183.00 Neurontin 5% * 1 76.88 176.88 176.88 Primary Care 5% * 1 ,055.00 1,055.00 174.40 Supportive Walking and House Shoes 4% 1 65.00 165.00 165.00 Gym Membership 4% 9 72.00 972.00 972.00 Therapeutic Massage 4% M 4 ,368.00 4,368.00 4,368.00 OTC Meds & Supplies 4% M 1 20.00 120.00 120.00 Trekking Poles 4% 7 5.00 75.00 75.00 Supportive Boots 4% 1 40.00 140.00 140.00 Superfeet Cushioning Insoles 4% 8 0.00 80.00 80.00 Gel Foam Mattress Pad 4% 3 5.00 35.00 35.00 Lost Earnings 1 03,651.14 Pain and Suffering 2 30,000.00 Past Unreimbursable Expenses 1 6,347.00 Annual Totals 3 57,185.02 7,186.88 6,489.28 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 ($7,186.88), lost earnings ($103,651.14), pain and suffering ($230,000.00), and past unreimbursable expenses ($16,347.00): $357,185.02 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.