VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01262
Package ID: USCOURTS-cofc-1_20-vv-01262
Petitioner: Thomas Grant
Filed: 2020-09-24
Decided: 2024-05-06
Vaccine: influenza
Vaccination date: 2018-10-03
Condition: Guillain-Barre Syndrome (GBS)
Outcome: compensated
Award amount USD: 240210

AI-assisted case summary:
Thomas Grant filed a petition under the National Vaccine Injury Compensation Program alleging that he suffered Guillain-Barre Syndrome (GBS) as a result of an influenza vaccine he received on October 3, 2018. The respondent conceded that Mr. Grant is entitled to compensation, agreeing that his condition met the criteria set forth in the Vaccine Injury Table and that the case was timely filed, the vaccine was administered in the United States, and he met the statutory severity requirement. The court found Mr. Grant entitled to compensation in 2021. Subsequent decisions addressed damages, with the Chief Special Master initially awarding $180,000.00 for pain and suffering and $9,475.75 for prior lost wages. A damages hearing was held to resolve remaining components, leading to a supplemental ruling awarding additional lost wages and future lost wages. The parties ultimately stipulated to a final award. The final decision awarded a lump sum of $240,210.84, which included compensation for pain and suffering, total lost earnings, and life care expenses for the first year. Additionally, an amount sufficient to purchase an annuity contract was awarded to cover future care items. This award represents compensation for all elements of damages to which Mr. Grant is entitled.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01262-0
Date issued/filed: 2021-07-01
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 06/01/2021) regarding 23 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-01262-UNJ Document 27 Filed 07/01/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1262V
UNPUBLISHED
THOMAS GRANT, Chief Special Master Corcoran
Petitioner, Filed: June 1, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Guillain-Barre Syndrome (GBS)
Respondent.
David John Carney, Green & Schafle LLC, Philadelphia, PA, for petitioner.
Wei Kit Tai, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On September 24, 2020, Thomas Grant 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 an influenza (“flu”) vaccine administered on October 3, 2018. Petition at 1. The
case was assigned to the Special Processing Unit of the Office of Special Masters.
On May 28, 2021, 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 concludes that Petitioner suffered from GBS and has satisfied
the criteria set forth in the Vaccine Injury Table (“Table”) and the Qualifications and Aids
to Interpretation (“QAI”). Id. at 6. Respondent further agrees that the records show that
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government
Services). 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, I agree that
the identified material fits within this definition, I 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 1:20-vv-01262-UNJ Document 27 Filed 07/01/21 Page 2 of 2
the case was timely filed, that the vaccine was received in the United States, and that
Petitioner satisfies the statutory severity requirement by suffering the residual effects or
complications of his injury for more than six months after vaccine administration. Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

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DOCUMENT 2: USCOURTS-cofc-1_20-vv-01262-1
Date issued/filed: 2023-09-25
Pages: 13
Docket text: PUBLIC DECISION (Originally filed: 08/31/2023) regarding 49 Findings of Fact & Conclusions of Law. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made.
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Case 1:20-vv-01262-UNJ Document 50 Filed 09/25/23 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1262V
* * * * * * * * * * * * * * * * * * * * * * * * *
*
THOMAS GRANT, * Chief Special Master Corcoran
*
Petitioner, * Filed: August 31, 2023
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
David J. Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Zoe Wade, U.S. Dep’t of Justice, Washington, DC, Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DAMAGES1
On September 24, 2020, Thomas Grant filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petitioner alleged that
he suffered Guillain-Barré syndrome (“GBS”) as a result of an influenza (“flu”) vaccine he
received on October 3, 2018. Petition (ECF No. 1) (“Pet.”) at 1. The matter was originally assigned
to the “Special Processing Unit” (the “SPU”), because it appeared to assert a Table claim that
would likely prove easily resolved.
However, the parties were unable to settle damages after I granted entitlement to Petitioner
on June 1, 2021. See Ruling, dated June 1, 2021 (ECF No. 23). Eventually, it was determined that
1 Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its present form. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”).
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. §§ 300aa.

Case 1:20-vv-01262-UNJ Document 50 Filed 09/25/23 Page 2 of 13
the matter was no longer appropriately maintained in SPU, as the nature of the parties’ disputes
began to expand, and therefore it was transferred to my individual docket in early 2013. By that
time, the parties had already briefed their respective positions, and represented their willingness to
have the dispute resolved without a hearing. See Petitioner’s Brief, dated Mar. 10, 2022 (ECF No.
38) (“Mot.”); Respondent’s Opposition, dated May 12, 2022 (ECF No. 41) (“Opp.”). Petitioner’s
Reply, dated Nov. 22, 2022 (ECF No. 44) (“Reply”); see also Status Report, dated February 7,
2023 (ECF No. 47).
For the reasons set forth below, I find that Petitioner is entitled to the following damages
components: $180,000.00 for pain and suffering, and $9,475.75 for lost prior wages. Future lost
wages and life care plan amounts will be determined later, after the parties recalibrate their
calculations in light of the fact findings contained in this Ruling.
I. Factual Background
Petitioner was born on October 5, 1942, and received the flu vaccine on October 3, 2018,
in San Antonio, Texas (when he was almost 76 years old). Ex. 2 at 1. A little more than two weeks
later, on October 18, 2018, he was admitted to San Antonio Military Medical Center, where he
saw neurologists, Kelsey Cacic, M.D. and Thomas Duginski, M.D., for a consultation. Ex. 3 at
692. Petitioner reported
[two to three] episodes of transient vision loss, lasting [five to seven]
minutes in his left eye[], described as though [a] ‘horizontal line’ was drawn
through his vision and [he could not] see the upper portion; this occurred
most recent two days ago, then three months prior, and possibly one other
time in [six] months. Two days ago, he also noted tingling in the palm of
his left hand which has persisted, not extending past the wrist, accompanied
by decreased grip strength in his dominant hand, although [he] denies
dropping items. On [the] morning of presentation, [he] . . . woke up around
0645 and immediately [noticed] weakness in his legs . . . which he initially
attributed to fatigue as he had slept poorly. He was able to stand but needed
assistance to walk, using walls or his wife for support throughout the day.
Id.
Upon examination, Petitioner exhibited a wide-based shuffling gait, left hand paresthesia
on baseline neuropathy, absent deep tendon reflexes, decreased proprioception, and light touch
distally. Ex. 3 at 692–94. Dr. Duginski assessed Petitioner with “proximal arm weakness, proximal
bilateral leg weakness, areflexia, and stocking distribution hypesthesia in the lower extremities.”
Id. It was further noted that Petitioner was “unable to stand without assistance. DDX [differential
diagnoses] for the paraparesis [include] a cord lesion vs. acute demyelinating polyneuropathy
superimposed upon the chronic polyneuropathy[,] [and] it is unclear if the areflexia is new or old.”
Id. at 709.
2

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Later that day, Petitioner underwent multiple imaging studies, including an MRI of his
spine, which showed “C3/4 and C5/6 stenosis without cord signal changes and [his] acute
progression of symptoms may indicate GBS.” Ex. 3 at 716–17. Two days later, on October 20,
2018, Petitioner received a dose of IVIG, and a lumbar puncture was performed—the results of
which showed elevated protein and glucose in Petitioner’s CSF, with no elevation in the white
blood cell count—thus supporting a GBS diagnosis. Id. at 751–52.
On October 23, 2018, Petitioner underwent an EMG. The clinical impression derived from
it was acute weakness, and “[w]hile overall history and physical exam is consistent with an acute
inflammatory demyelinating polyneuropathy, no firm electrodiagnostic evidence of demyelinating
or conduction block was noted in today’s study.” Ex. 3 at 122.
Petitioner was discharged from the hospital on October 26, 2018, and transferred to Post
Acute Medical Specialty of San Antonio. Id. at 824–25. He was then admitted for physical therapy
(“PT”), occupational therapy (“OT”), rehabilitation, and continued medical management. Ex. 4 at
45–46. Petitioner saw internist, Mehmood Khan, M.D., who assessed Petitioner with “[s]evere
debilitation weakness, impaired mobility, most likely secondary to [GBS], [with] acute onset.” Id.
On October 31, 2018, Petitioner followed up with Dr. Khan. Ex. 4 at 85. Dr. Khan noted
that Petitioner had “severe generalized weakness, impaired mobility and impaired ADLs most
likely due to [GBS] post influenza injection” and recommended that Petitioner continue aggressive
PT and OT as tolerated. Id. The next day, on November 1, 2018, Petitioner was transferred to
inpatient rehabilitation at Warm Springs for continued PT/OT. Id. at 36.
Petitioner was then later transferred by ambulance and readmitted to San Antonio Military
Medical Center on November 12, 2018. Ex. 5 at 36, 121. Dr. Cacic evaluated Petitioner, and
documented that Petitioner’s “symptoms of worsening paresthesias, decreased dexterity, and most
importantly declining respiratory function [were] concerning for continued progression of his
known GBS.” Ex. 3 at 270–72. It was recommended that Petitioner repeat IVIG treatment for three
days. Id. at 274. On November 16, 2018, Petitioner was discharged from San Antonio Military
Medical Center and returned to Warm Springs following a PT evaluation of his continued care
requirements. Id. at 351–52.
After a fairly lengthy hospital stay, Petitioner was discharged from inpatient rehabilitation
at Warm Springs on March 25, 2019, but continued to received outpatient OT with Apex Home
Health from March 26, 2019, to May 29, 2019, working on strength, gait and transfer training, and
balance strengthening. Ex. 7 at 89.
Petitioner began therapy with Texas Physical Therapy Specialists on April 15, 2019. Ex. 8
at 10. He participated in twenty PT sessions for “generalized [lower extremity] strength
impairments, general deconditioning and reduced activity tolerance, and significantly impaired
function.” Id. at 10, 137. At discharge, on June 3, 2019, Petitioner’s strength and endurance were
noted as having improved, but he could no longer benefit from further PT. Id.
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On July 12, 2019, Petitioner saw Dr. Cacic for a neurology follow-up. Ex. 3 at 125–29. Dr.
Cacic noted that Petitioner had made significant improvements in PT. Ex. 3 at 125. It was then
noted that he had been using a rolling walker after being discharged from inpatient rehab in March
but had “…now advanced to a cane as needed.” Id. Dr. Cacic observed that Petitioner “has regained
enough strength/function to go back to work part-time and denies any significant daily impairment
due to AIDP sequelae.” Id. at 129.
Six months later, Petitioner met with Dr. Cacic for another neurology follow-up on January
14, 2020. Ex. 3 at 119. Petitioner reported that he was “[p]rogressing along well…” but still desired
more PT. Id. Dr. Cacic noted that Petitioner also continued to experience minor fatigue but could
forgo a nap when needed. Id at 120. It was also noted that Petitioner still was experiencing mild
tingling in his fingertips. Id.
On February 12, 2020, Petitioner reported to an oncologist, Edsel Hesita M.D., at Texas
Oncology. Petitioner was at this time diagnosed with chronic lymphocytic leukemia
(“CLL”)/small lymphocytic lymphoma.3 Ex. 12 at 35. Petitioner’s wife—who accompanied
petitioner to the visit—reported that Petitioner was “…always tired.” Id. It was also noted that
Petitioner had fatigue beginning several months ago, although as early as April 11, 2018 (pre-
vaccination) it had been noted that Petitioner had also been experiencing fatigue. See Ex. 9.4 On
August 18, 2020, Petitioner had a telehealth follow-up appointment with Dr. Hesita, who noted
that Petitioner’s lymphocyte count was “slightly elevated indicating a response to treatment.” Id.
at 5. As a result, Petitioner was advised to continue ibrutinib5 until further progression. Id.
There is a subsequent gap in records establishing treatment. However, on May 5, 2021
(during the pendency of this case), Petitioner saw Linda Esquival, M.D. Ex. 14 at 1. Following an
assessment, Dr. Esquival noted that Petitioner had exhibited no further improvement, and that he
was experiencing ongoing and likely permanent symptoms of GBS. Specifically, Dr. Esquival
wrote:
Mr. Grant has completed physical and occupational therapy, which helped.
Further, therapy did not seem to render any further improvement. Given his
stability and lack of further improvement, therapy was stopped per physical
therapist recommendations. The symptoms that persist, including extremity
3 “Chronic Lymphocytic Leukemia” is defined as “a common form mainly seen in the elderly; symptoms include
lymphadenopathy, fatigue, renal involvement, and pulmonary leukemic infiltrates. Circulating malignant cells are
usually differentiated B lymphocytes; a minority of cases have mixed T and B lymphocytes or entirely T
lymphocytes.” Chronic Lymphocytic Leukemia, Dorland’s Medical Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=85253&searchterm=chronic+lymphocytic+leukemia (last
visited Aug. 31, 2023).
4 In fact, on July 24, 2019, Petitioner’s fatigue was deemed long-standing. Ex. 9 at 45.
5 “Ibrutinib” is defined as “an antineoplastic targeted therapy inhibitor of Bruton’s tyrosine kinase.” Ibrutinib,
Dorland’s Medical Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=137189&searchterm=ibrutinib (last visited Aug. 31, 2023).
4

Case 1:20-vv-01262-UNJ Document 50 Filed 09/25/23 Page 5 of 13
weakness, gait instability, imbalance and fatigue, appear to be permanent
symptoms of GBS. I continue to recommend the use of his cane or walkers
as instability worsens as well and possible modifications to home.
Ex. 14 at 1. Dr. Esquival opined overall that Petitioner’s quality of life was greatly affected by his
GBS diagnosis. Id.
II. Relevant Law on Damages Determinations
A. General Considerations
A petitioner may recover “actual unreimbursable expenses incurred before the date of
judgment awarding such expenses which (i) resulted from the vaccine-related injury for which the
petitioner seeks compensation, (ii) were incurred by or on behalf of the person who suffered such
injury, and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(A)(i) –(iii). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health & Hum. Servs.,
No. 93-0092V, 1996 WL 147722, at *22–23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
As noted above, this provision of the Act permits recovery of costs to be incurred for future
care as well, although such costs must be shown to be “reasonably necessary.” Section
15(a)(1)(A)(iii)(I) –(II). The meaning of the phrase “reasonably necessary” is somewhat imprecise,
as I have recognized in other cases. Barone v. Sec’y of Health & Hum. Servs., No. 11-707V, 2016
WL 3577540 (Fed. CL. Spec. Mstr. May 12, 2016) (citing I.D. v. Sec’y of Health & Human Servs.,
No. 04-1593V, 2013 WL 2448135, at *6 (Fed. Cl. Spec. Mstr. Apr. 19, 2013) (defining
“reasonably necessary” to mean “that which is required to meet the basic needs of the injured
person . . . but short of that which may be required to optimize the injured person’s quality of
life”); see also Bedell v. Sec’y of Health & Hum. Servs., No. 90-765V, 1992 WL 266285 (Cl. Ct.
Spec. Mstr. Sept. 18, 1992) (defining the term to mean more than merely barely adequate, but less
than the most optimal imaginable). And it goes almost without saying that such costs must also
pertain to care associated with the alleged injury or its sequalae.
B. Pain and Suffering
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an award not
to exceed $250,000.00.” Section 15(a)(4). There is no mathematic formula for assigning a
monetary value to a person’s pain and suffering and emotional distress. I.D., 2013 WL 2448125,
at *9 (“[a]wards for emotional distress are inherently subjective”); Stansfield v. Sec’y of Health &
Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996).
Factors to be considered when determining an award for pain and suffering include: 1)
awareness of the injury; 2) severity of the injury; and 3) duration of the suffering. I.D., 2013 WL
2448125, at *9 (citing McAllister v. Sec’y of Health & Hum. Servs., No. 91-1037V, 1993 WL
777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70
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F.3d 1240 (Fed. Cir. 1995)). I may consider prior pain and suffering awards to aid my resolution
of the appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v.
Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009). And, of course, I may rely on my
own experience adjudicating similar claims. Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958,
961 (Fed. Cir. 1993) (noting that Congress contemplated that the special masters would use their
accumulated expertise in the field of vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a continuum, as
Respondent argues, that practice was cast into doubt by a decision from several years ago. Graves
v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013). Graves maintained that to do
so resulted in “the forcing of all suffering awards into a global comparative scale in which the
individual petitioner’s suffering is compared to the most extreme cases and reduced accordingly.”
Graves, 109 Fed. Cl. at 589–90. Instead, Graves assessed pain and suffering by looking to the
record evidence, prior pain and suffering awards within the Vaccine Program, and a survey of
similar injury claims outside of the Vaccine Program. Id. at 593–95. Under this alternative
approach, the statutory cap merely cuts off higher pain and suffering awards—it does not shrink
the magnitude of all possible awards as falling within a spectrum that ends at the cap. Although
Graves is not controlling of the outcome in this case, it offers a reasoned understanding of the
issues involved in pain and suffering calculations, and underscores the importance of evaluating
pain and suffering first and foremost on the basis of the injured party’s own experience.
Program decisions have generally recognized that GBS is a particularly frightening injury,
given its nature and progression. Enstrom v. Sec’y of Health & Hum. Servs., No. 20-2020V, 2023
WL 345657, at *6 (Fed. Cl. Spec. Mstr. Jan. 20, 2023) (awarding $170,000.00 in pain and
suffering) (citing Gross v. Sec’y of Health & Hum. Servs., No. 19-0835V, 2021 WL 2666685, at
*5 (Fed. Cl. Spec. MStr. Mar. 11, 2021)). As a result, it is common to award actual pain and
suffering amounts in such cases in excess of $100,000.00—and typically even more.6 Enstrom,
2023 WL 345657, at *6 n.14 (observing that in the majority of prior decisions involving GBS,
actual pain and suffering awards made in reasoned decisions were usually not less than
$125,000.00).
C. Lost Wages – Past and Future
The Vaccine Act provides for recovery of “actual and anticipated loss of earnings
determined in accordance with generally recognized actuarial principles and projections,” where
6 Statistical data for all GBS cases resolved in SPU by proffered amounts from SPU’s inception through July 1, 2023,
reveals $167,600.00 as the median sum awarded for all damages in such cases. The awards in these cases—totaling
307, have typically ranged from $127,346.66 to $254,153.78, representing cases between the first and third quartiles
and awards comprised of all categories of compensation—including lost wages. 39 cases include the creation of an
annuity to provide for future expenses.
Past pain and suffering amounts awarded in substantive decisions issued in 28 SPU GBS cases range from $125,000.00
to $192,500.00 with an additional case involving annuity payments. The median amount award in these 29 cases was
$171,248.72. Awards in cases falling with the first and third quartiles range from $158,027.98 to $180,000.00.
6

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the injured party’s “earning capacity is or has been impaired by reason of such person’s vaccine-
related injury.” Section 15(a)(3)(A). The calculation of lost earnings damages must be performed
in a “cautious manner ‘in accordance with generally recognized principles and projections.’”
Brown v. Sec’y of Health & Hum. Servs., No. 00-182V, 2005 WL 2659073, at *6 (Fed. Cl. Spec.
Mstr. Sept. 21, 2005) (citing Section 15(a)(3)(A)). Moreover, the Vaccine Act requires that any
award of compensation relating to future damages shall be reduced to its net present value. Section
15(f)(4)(A).
Compensation awarded for a petitioner’s anticipated loss of earnings may not be based on
speculation. J.T. v. Sec’y of Health & Hum. Servs., No. 12-618V, 2015 WL 5954352, at *7 (Fed.
Cl. Sept. 17, 2015) (indicating Section 15(a)(3)(A) “does not envision that ‘anticipated loss of
earnings’ includes speculation” and thus refusing to allow lost wages on a planned business
venture that was too indefinite); Dillenbeck v. Sec’y of Health & Hum. Servs., 147 Fed. Cl. 131,
139 (2020 (citing J.T., 2015 WL 5954352, at *7). Accordingly, it is not enough to substantiate
such a request with some evidence, if the submissions offered ultimately rely on speculated (if
somewhat informed) “guesses” about what a claimant might have earned under optimal conditions.
See, e.g., Moreland v. Sec’y of Health & Hum. Servs., No. 18-1319V, 2022 WL 10469047 (Fed.
Cl. Spec. Mstr. Sept. 2, 2022) (denying injured real estate agent’s claim of lost commissions;
although petitioner substantiated her claim with evidence, she could not demonstrate her
expectation of commissions or other real estate-related income was more than a reasoned hope).
II. Appropriate Compensation in this Matter
A. Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all times
Petitioner was a competent adult with no impairments that would impact his awareness of his GBS.
Therefore, my analysis focuses primarily on the severity and duration of Petitioner’s injury.
When performing this analysis, I review the record as a whole including the medical
records and affidavits filed, and all assertions made by the parties in written documents.
Petitioner’s medical records and affidavits provide descriptions of his treatment course and the
pain and suffering he experienced during his illness. Petitioner had an eight-day hospitalization,
approximately five-month stay in inpatient rehabilitation, two rounds of IVIG treatment, and a
significant amount of physical therapy and occupational therapy. Petitioner continues to require
substantial assistance with his activities of daily living and uses an assistive device (roller walker)
to walk. Although Petitioner continues to experience some ongoing sequelae, including fatigue
and muscle weakness, his recovery has been relatively good.
Overall, Petitioner’s specific treatment course was lengthier and more severe than what
many other injured claimants have experienced—but also not comparable to the worst GBS cases,
which can feature permanent disabilities even after primary treatment concludes. Although as a
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class, GBS injuries warrant somewhat higher pain and suffering awards, not all GBS courses are
the same.
Based upon the foregoing, and considering the parties’ written arguments, I find that
Petitioner suffered a moderate to serious GBS injury. He experienced significant medical care,
including two rounds of IVIG and over five months of overall treatment through inpatient
hospitalization and inpatient rehabilitation facilities, as well as outpatient OT sessions. The injury
has greatly impacted Petitioner’s everyday life, as he requires assistance for walking, self-care,
and other activities, and he continues to experience ongoing fatigue and muscle weakness.
Petitioner requests $195,000.00 for past and future pain and suffering (collectively).
Besides the medical record evidence of his course, he references several comparable cases, in
which the petitioners received pain and suffering awards in the range of $180,000 to $200,000.00.
7 Mot. at 3; Hood v. Sec’y of Health & Hum. Servs., No. 16-1042V, 2021 WL 5755324 (Fed. Cl.
Spec. Mstr. Oct. 19, 2021); McCray v. Sec’y of Health & Hum. Servs., No. 19-0277V, 2021 WL
4618549 (Fed. Cl. Spec. Mstr. Aug. 31, 2021); Devlin v. Sec’y of Health & Hum. Servs., No. 19-
0191V, 2020 WL 5512505 (Fed. Cl. Spec. Mstr. Aug. 7, 2020). The Hood petitioner (who received
$200,000.00) spent 16 days inpatient, received two courses of IVIG treatment, had five months of
outpatient rehab, and had ongoing sequelae, including fatigue and reduced stamina, that interfered
with his employment and parenting. Id. at 2–4. Petitioner argues that the severity of his pain and
recovery period is most analogous to Hood, but maintains he had a lengthier hospital stay and
underwent more treatment than the petitioners in McCray and Delvin. Mot. at 22; Reply at 7–8.
In contrast, Respondent proposes a lesser award of $137,500.00. Opp. at 8. Respondent
does not offer a counter-comparable case (in contrast to Petitioner’s better-documented showing),
but argues that Petitioner’s clinical course demonstrates a less severe course of GBS compared to
other cases. Opp. at 6, 8. He also references Petitioner’s prior medical history as a more likely
explanation for Petitioner’s injuries, as many of the symptoms he experienced prior to vaccination
mimicked those experienced post-vaccination. Id at 6, 8 (Petitioner had past symptoms of bilateral
leg weakness with difficulty walking, hand numbness, decreased strength, and vision loss) Id.
Moreover, Respondent argues that Petitioner’s symptoms reflect what any aging individual might
experience—noting that the injured parties in the cases cited by Petitioner were not only all
generally healthy and/or had no prior relevant medical history, but were approximately ten to thirty
years younger than Petitioner. Id.
Respondent also briefly focuses on the post-vaccination diagnosis of CLL found in
Petitioner’s medical history as an explanatory factor for Petitioner’s most recent symptoms. Opp.
7 Petitioner also cited Francesco v. Sec’y of Health & Hum. Servs., No. 18-1622V, 2020 WL 6705564 (Fed. Cl. Spec.
Mstr. Oct. 15, 2020) and W.B. v. Sec’y of Health & Hum. Servs., No. 18-1634V, 2020 WL 5509686 (Fed. Cl. Spec.
Mstr. Aug. 7, 2020)—both of which involved petitioners who were awarded between $155,000.00, and $165,000.00
in pain and suffering.
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at 8. Respondent argues that Petitioner had been progressively regaining strength and denied any
significant daily impairment until he was diagnosed with CLL approximately sixteen months post-
vaccination. Id. Respondent also points to an August 2021 Medicare annual visit in which
Petitioner described no lack of energy, no difficulties, with activities of daily living, no problems
with mobility, and no falls. Id. This came three months after Dr. Esquivel had attributed
Petitioner’s weakness and mobility limitations to GBS in a letter from May 2021 (prepared while
the case was pending). Id.
As I have explained in prior decisions, the existence of pre-vaccination (or even post-
vaccination) comorbidities do not diminish the impact a vaccine injury (GBS in particular) can
have on a petitioner’s life, and therefore are not per se grounds for a lower pain and suffering
award. Bircheat v. Sec’y of Health & Hum. Servs., No. 19-088V, 2021 WL 3026880, at *4 (Fed.
Cl. Spec. Mstr. June 16, 2021) (awarding $170,000.00 for actual pain and suffering). But they bear
on the extent of suffering independent from the vaccine injury, especially if it can be discerned in
the medical record that these comorbidities either required invasive treatments of their own or
better explained ongoing symptoms. I nevertheless have taken into consideration the exceptional
hardship imposed on Petitioner—who continues to experience some GBS-related sequelae even
while battling cancer at the same time.
Here, I find that Petitioner’s actual course of GBS was somewhat more intrusive and
lengthier than usual, but also that his recovery was reasonably good, featuring the expected
limitations from GBS but nothing that could be characterized as a diagnosed permanent disability.
I also find that further out temporally, other health issues that appear in the record better explain
Petitioner’s more recent suffering than his GBS. Thus, he should receive a significant award for
pain and suffering, but less than demanded. However, Respondent did not adequately explain or
defend his proposed number, so it is appropriate to look within the scope of cases offered by
Petitioner rather than move down toward Respondent’s lower figure.
Balancing the severity of Petitioner’s GBS injury and the impact on him personally against
his relatively good recovery, and considering the arguments presented by both parties, a review of
the cited cases, and based on the record as a whole, I find that $180,000.00 in compensation for
actual pain and suffering is reasonable and appropriate in this case. This is an above-median and
substantial award, and it fairly compensates Petitioner for his suffering, but also distinguishes his
more recent experiences, which seem unlikely to be significantly related to his GBS.
9

Case 1:20-vv-01262-UNJ Document 50 Filed 09/25/23 Page 10 of 13
B. Lost Wages – Past and Future
Petitioner requests a total award of $130,311.00 for past and future lost wages (subject to
adjustment)8 relating to his work as a part-time psychologist. Mot. at 30; Reply at 11. To support
this component of his damages demand, Petitioner relies on a mix of factual evidence, witness
statements, and expert input.
Petitioner relies on calculations performed by his life care planner, Roberta Hurley. See
generally Vocational Assessment, dated September 2, 2021, filed as Ex. 16 (ECF No. 34-2)
(“Hurley Assessment”); Petitioner’s Tax Returns (2013-19), filed as Ex. 21 (ECF No. 37-3).9
Petitioner calculates his past wage loss amounts to be $53,146.00 through the end of December
2021. Mot. at 30. That figure was derived from Ms. Hurley’s determination that Petitioner’s
average annual wage between 2013 and 2018 was $14,804.50. Hurley Assessment at 1. In addition,
Petitioner only earned $6,847.00 in 2018, due to work time lost after his vaccine injury in October
2018. Mot. at 29–30. (Petitioner has not shown, however, how these figures add up. In fact, if the
annual wage calculated by Ms. Hurley is multiplied by three (for 2019-21), and then the difference
between the sum earned in 2018 and expected amount is added, the total is less than the amount
demanded).10
For future lost wages, Petitioner demands $77,165.00, calculating them from January 2022
(when his damages brief was filed) onward. Mot. at 30; Reply at 11; Ex. 20 at ¶ 7. To derive this
sum, Ms. Hurley simply relied on Petitioner’s assumed 2017 earnings ($15,433.00) (presumably
because he could have expected the same amount in years thereafter but for the injury). Mot. at
30. He also has assumed five more years of employment (January 2022 to December 2027), when
Petitioner will be 85. Ex. 16 at 1.
In so maintaining, Petitioner offers his own witness statements detailing the impact his
injury purportedly had on his ability to function day-to-day in a work environment. See, e.g., Ex
20 at 1–2 (Pet. Supp. Aff.) (describing need for multiple naps throughout the day, extreme fatigue
and decreased mental capacity—forgetfulness, absent-mindedness, incoherent thought process);
Mot. at 28; Reply at 10. He also maintains that his personal circumstances limit the value of
accounting assumptions about an individual’s likely work capacity. Reply at 10. Thus, for purposes
8 Petitioner concedes that this figure does not account for taxes and deductions, nor has the future component been
reduced to net present value. Mot. at 30. But he asks that those calculations and reductions be made after a ruling on
the gross figure is determined.
9 Petitioner also refers to an Exhibit A (“Wage Loss Documents”) to support his proposed past earned wages and
future wages and notes that it was attached to his motion. See Mot. at 30. But this exhibit does not appear on the
docket. The only Exhibit A filed in this matter is the Nursing Assessment from Respondent’s life care planner, Laura
Fox. See Ex. A (ECF No. 36-1).
10 I calculate the correct total, based on Petitioner’s reasoning, to be $52,371.00 (3 x $14,804.50 = $44,41350) +
($14,804.50 - $6,847 = $7957.50).
10

Case 1:20-vv-01262-UNJ Document 50 Filed 09/25/23 Page 11 of 13
of determining future lost earnings, his intent to continue to work into his 80s should override
assumptions about what the average worker might reasonably expect.
Respondent has agreed to the propriety of a past lost wage award, but calculates Petitioner’s
total lost earnings from October 2018 to the end of 2021 to be the lesser sum of $9,475.75. Opp.
at 5. Respondent instead begins with a figure based on Petitioner’s income/profit after expenses,
which he derived from Petitioner’s tax returns, amounting to $4,285.00 gross, but then (accounting
for tax offsets) reduces to the net sum of $2,736.83 annually. Id.; Ex. D (Respondent’s Estimated
Lost Earnings Analysis) at 1. In defense of this lower figure, Respondent also noted that Petitioner
had only earned $1,471.56 in 2018 even before his receipt of the flu vaccine, with a net loss of
$1,265.26. Opp. at 5. Respondent denies the propriety of any future wages award, however. He
argues instead that according to a reliable work-life chart, Petitioner could only expect to work for
an average of another 3.44 years, or until 2021, when he turned 80—and thus the total lost sum is
the most he can reasonably demand. Opp. at 5; Ex. F (Mean Work-Life Expectancy Chart).
Petitioner otherwise offered no statistical evidence to justify applying a different rubric to the
calculation. Opp. at 6.
The question of actual lost wages is more easily resolved—as Respondent’s calculation of
the sum is plainly better-defended and explained. See Opp. at 6; Ex. 21 at 101, line 29. Petitioner
has only offered his tax returns to substantiate his earnings in the relevant timeframe, and
Respondent’s calculations more credibly and persuasively rely on what they disclose. See Ex. D
at 1–3. The relevant time period for lost wages is also consistent with the average worker’s mean
work-life expectancy, given Petitioner’s age at the time of vaccination. Opp. at 5; Ex. F (Mean
Work-Life Expectancy Chart). That figure is therefore “in accordance with generally recognized
actuarial principles and projections.” Section 15(a)(3)(A).11 Therefore, and based on the evidence
filed, I shall award Petitioner $9,745.75 in actual lost wages.
Petitioner’s request for future lost earnings, however, cannot be resolved without some
more input from the parties. On the one hand, Petitioner’s proposal has a speculative aspect to it.
I recognize Petitioner’s intent to continue working into his older years. However, such a desire—
however sincere, and even where the work at issue is not physically-intensive— lacks the kind of
grounding needed for a future lost wages award. See Moreland v. Sec’y of Health & Hum. Servs.,
No. 18-1319V, 2022 WL 10469047, at *11 (Fed. Cl. Spec. Mstr. Sept. 2, 2022) (denying
compensation for lost wages/earnings for lack of preponderant support and finding the petitioner’s
11 While the Federal Circuit has not interpreted what qualifies as “generally recognized actuarial principles and
projections,” there are several decisions that interpret “actuarial principles” in a broader sense from other federal and
state statutes, where actuarial data and expert opinions are required to substantiate damages. See, e.g., Chabner v.
United of Omaha Life Ins. Co., 994 F. Supp. 1185, 1194 (N.D. Cal. 1998), aff’d, 225 F.3d 1042 (9th Cir. 2000) (finding
that under the Americans with Disabilities Act, sound actuarial principles “must . . . include reference to some sort of
actuarial data either in the form of actuarial tables or clinical studies estimating mortality rates”); Fleisher v. Phoenix
Life Ins. Co., 18 F. Supp. 3d 456, 480 (S.D.N.Y. 2014) (taking into account conflicting expert testimony when
assessing “accepted actuarial principles” under a New York statute).
11

Case 1:20-vv-01262-UNJ Document 50 Filed 09/25/23 Page 12 of 13
calculations were “rooted in speculation about her incipient earning goals or hopes—not in
‘generally recognized actuarial evidence and projections’” as required by Section 15(a)(3)(A)).
In addition, Petitioner has provided an insufficient analysis of his vocational options in
light of his injury (which would serve as set-offs for the amounts he expected to earn). And it has
not been demonstrated that Mr. Hurley is even a qualified expert on vocational matters, further
reducing the value of the opinion she offered. Dillenbeck v. Sec’y of Health & Hum. Servs., 147
Fed. Cl. 131, 139–40 (2020) (holding that “a one-page letter from a Vocational Specialist is not
sufficient to satisfy the Vaccine Act’s mandate for application of ‘generally recognized actuarial
principles and projections’ in awarding lost earnings”).
At the same time, however, Petitioner’s capacity to continue to work, and intent to do so,
should not be disregarded (absent evidence that actuarial principles require that this occur). And
this issue has otherwise not been adequately addressed by either side. Accordingly, I will defer
ruling on it pending more development of the issue by the parties (as explained below).
C. Medical Care Expenses – Past and Future
From the parties’ submissions, it is unclear if in fact any past unreimbursed expenses have
been discussed, demanded, or are called for under the facts. But there are a number of future care
items, although Respondent seems to concur that some future care is appropriate.
Petitioner (relying on a life care plan prepared by Ms. Hurley), identifies categories of care
that are accepted versus those that are not. Mot. at 31–32, Ex. 19 at 3–5. Respondent, by contrast,
proposes $36,370.48 for life care expenses expected to be incurred during the first year after
judgment, plus an annuity for all future items. Opp. at 9. He offers a life care planner of his own,
Laura Fox, who has not accepted all categories of care proposed. Ex. 8 at 1–5. Looking at the
briefing as a whole, it appears that the parties have agreed on four items in the life care plans:
Medline Rollator Walker with Seat ($29.23 annually for life), Adjustable Cane ($5.10 annually for
life), Cane Tips ($12.99 annually for life), and Pride Lift Chair (one-time purchase at $812.00).12
Reply at 11–12; Opp. at 2–3. These reflect care associated with the kind of ambulatory issues
reflected in Petitioner’s medical records as of the time his GBS was mostly treated, and they are
properly awarded.
But this leaves twelve remaining items in dispute. These items include a gym and water
therapy, home health aide, an electric wheelchair, batteries and service for wheelchair, an electric
scooter, batteries and service for electric scooter, an electric power chair and scooter lift and
12 In his Motion, Petitioner stated that the parties had agreed upon six items in the life care plans; however, he amended
his position and noted that he agreed with Respondent that the Medicare Part B Premiums should be stricken as it is a
routine cost due to Petitioner’s age. Additionally, Respondent included a cost for physical therapy that is likely to be
covered by Petitioner’s insurance, and thus a gym membership was not agreed upon.
12

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carrier, a rolling shower chair, a cleaning service, adjustable beds, lawn service, and home
bathroom modifications. Reply at 13–14; Opp. at 3–4.
I will defer ruling on the propriety of the disputed, future care components to allow the
parties additional time to discuss these items, and to assist me in determining how best to resolve
this dispute. To that end, the parties shall contact chambers immediately for a status conference,
at which time I will provide them some preliminary views about the various unagreed categories
of damages. (I note at this time, however, that many of the future care items requested seem self-
evidently inappropriate, such as a gym or in-home care. Petitioner is advised strongly to reconsider
asking for some of these items, since it does not appear to me that his GBS sequelae go much
beyond some ambulation-level issues). The propriety of future lost wages, and best manner in
which to calculate them, shall also be discussed at this time.
The parties are otherwise reminded that this case began life in the SPU, and has now existed
for three years in the Program. Although determining the remaining damages components may
require some effort, I will not permit the process to take excessive additional time—and the parties
therefore should not expect to be provided months and months of additional time to resolve these
matters (especially given how much time they have already been provided).
CONCLUSION
In light of all of the above, I find Petitioner is entitled to (a) $180,000.00 in actual pain and
suffering, and (b) $9,475.75 in actual lost wages. These figures will be incorporated in the final
damages decision to be issued in this case (with some adjustments to the past amount likely
appropriate).
The parties shall contact Chambers immediately to set a status conference to discuss how
all remaining damages components can be resolved.
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
13

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_20-vv-01262-2
Date issued/filed: 2024-03-05
Pages: 12
Docket text: PUBLIC ORDER/RULING (Originally filed: 02/09/2024) regarding 64 Findings of Fact & Conclusions of Law. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-01262-UNJ Document 65 Filed 03/05/24 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1262V
* * * * * * * * * * * * * * * * * * * * * * * * *
*
THOMAS GRANT, * Chief Special Master Corcoran
*
Petitioner, * Filed: February 9, 2024
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
David J. Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Zoe Wade, U.S. Dep’t of Justice, Washington, DC, Respondent.
SUPPLEMENTAL DAMAGES RULING1
On September 24, 2020, Thomas Grant filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petitioner alleged that
he suffered Guillain-Barré syndrome (“GBS”) as a result of an influenza (“flu”) vaccine he
received on October 3, 2018. Petition (ECF No. 1) (“Pet.”) at 1. On August 31, 2023, I issued
Findings of Fact and Conclusions of Law Regarding Damages, and therein determined that
Petitioner was entitled to certain damages components: $180,000.00 for pain and suffering, and
$9,475.75 for prior lost wages. However, future lost wages, plus disputed life care plan items and
amounts, were to be determined later, after the parties were given an opportunity to recalibrate
their calculations in light of my Ruling. See Findings of Fact Ruling, dated Aug. 31, 2023 (ECF
No. 49) (“Initial Damages Ruling”).
1 Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its present form. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:20-vv-01262-UNJ Document 65 Filed 03/05/24 Page 2 of 12
Unfortunately, the parties were unable to resolve any of the remaining damages
components, and therefore a Damages Hearing was held on December 18, 2023, in Washington,
D.C. The parties also offered additional briefing on November 30, 2023. Respondent’s Brief on
Future Lost Wages, dated Nov. 30, 2023 (ECF No. 55); Petitioner’s Brief in Support of Future
Lost Wages, dated Nov. 30, 2023 (ECF No. 56).
Now, after consideration of all of the evidence, and for the reasons described below, I find
that Petitioner is entitled to the following remaining damages components: $5,473.66 for an
additional two years of lost past wages through 2023, plus $5,372.71for future lost wages through
2025 This Decision also awards the costs for certain disputed items in the life care plan, as noted
herein, and includes a total summary of all damages to be awarded to the Petitioner.
I. Factual Background
I incorporate by reference the facts set forth in the Initial Damages Ruling (ECF No. 49 at
2–5).
II. Hearing Testimony
Both sides retained life care planners, who prepared multiple written assessments of the
specific care recommended for Petitioner. Hurley Report, dated July 25, 2015, filed as Ex. 15 (ECF
No. 34-1); Hurley Assessment, dated Sept. 2, 2021, filed as Ex. 16 (ECF No. 34-2); Hurley Supp.
Report, dated Mar. 7, 2022, filed as Ex. 19 (ECF No. 37-1); Hurley Second Supp. Report, dated
Dec. 5, 2023, filed as Ex. 25 (ECF No. 57-2); Fox Report, dated, Nov. 2021, filed as Ex. A (ECF
No. 36-1); Fox Cost Projection Rev., dated Nov. 8, 2021, filed as Ex. B (ECF No. 36-2); Fox Supp.
Report, dated, Mar. 31, 2022, filed as Ex. E (ECF No. 40-1).
Petitioner’s Expert – Roberta Hurley
Ms. Hurley received a Bachelor of Science degree in special education, with a
concentration in family and juvenile. Tr. at 11. She owns two businesses—one a for-profit where
she is a vendor for the State of Connecticut and provides employment and case management
support to those with disabilities and for school-to-work transitions, and the other a nonprofit
where she provides employment services to those in a wet shelter in New London, Connecticut.
Id. In addition, Ms. Hurley has worked in the Vaccine Program for thirty years—providing
employment plans, needs assessments, and life care plans for individuals of all ages, all types of
disabilities, and all types of medical injuries. Id.
Ms. Hurley testified that she conducted two “site visits” with the Petitioner—on August
30, 2021 and December 1, 2023. Tr. at 16.3 During these virtual visits, Ms. Hurley was able to
visually assess Petitioner’s needs and capabilities. Id. In addition, Ms. Hurley relied on two reports
offered by one of Petitioner’s treating physicians, Dr. Linda Esquivel, who opined that Petitioner’s
3 The December 1, 2023, virtual visit also included Petitioner’s counsel, Respondent’s counsel, Respondent’s life care
planner, Petitioner, and Petitioner’s son.
2

Case 1:20-vv-01262-UNJ Document 65 Filed 03/05/24 Page 3 of 12
“increased fatigue along with his impaired balance is related to his Guillain-Barré syndrome.” Tr.
at 17; Esquivel Narrative Rep., dated May 5, 2021, filed as Ex. 14 (ECF No. 25-1); Esquivel
Questionnaire, dated Sept. 14, 2021, filed as Ex. 17 (ECF No. 34-3); Esquivel Supp. Rep., dated
Dec. 1, 2023, filed as Ex. 24 (ECF No. 57-1). Ms. Hurley testified that she “saw a marked
difference” during the last “virtual” site visit—furthering stating that she “was really worried
watching him with a rolling walker” and that Petitioner’s legs are not stable. Id. at 18. Overall, Ms.
Hurley testified that Petitioner requires more specialized care catered to his injuries he sustained
post-vaccination. Tr. at 19.
Ms. Hurley briefly discussed Petitioner’s comorbidities (i.e., his diabetes and chronic
lymphocytic leukemia (“CLL”) diagnosis), stating that based upon the medical records,
Petitioner’s diabetes is well-managed, and his CLL is in remission. Tr. at 32–33. Moreover, Ms.
Hurley maintained that she constructed her proposed life care plan based upon the
recommendations of Petitioner’s PCP, Dr. Esquivel, who attributed Petitioner’s symptoms and
sequela to his GBS, and not solely on his comorbidities, plus her own virtual site visits. Tr. at 65.
Based on Petitioner’s health status, Ms. Hurley made a number of care recommendations,
both for personal treatment and assistance as well as physical items or other accommodations
which are discussed in greater detail below.
Respondent’s Expert – Laura Fox, R.N.
Ms. Fox is a registered nurse. She received her bachelor’s and master’s degrees in nursing.
Tr. at 73. She received her life care plan certification in 1998, although she has been involved in
life care planning since 1991. Id. Ms. Fox owns her own company, Fox Associates, where she
provides life care planning services and case management. Id. Her clinical experience includes
working with individuals with disabilities and she has prepared approximately over 500 life care
plans over the course of her career. Id. at 73–74.
Ms. Fox participated in two virtual site visits with Petitioner on August 30, 2021, and
December 1, 2023, respectively. Tr. at 74–75. Besides these two visits, Ms. Fox noted that she did
not have any other contact with Petitioner when constructing her life care plan. Id. at 75. Ms. Fox
then briefly discussed the questionnaire that Dr. Esquivel received on September 14, 2021,
acknowledging that she had prepared some of the questions, but there were several that she did not
prepare or review. Id. at 76; Ex. 17. She explained that oftentimes when there are changes to an
individual’s circumstances, “life care planners [will] work together to [prepare] a document and
then send it to the physician” to help determine the current and future care needs of the individual
and to discuss anything that might not be reflected in the medical records. Tr. at 76, 93. Ms. Fox
further explained that other than preparing parts of the questionnaire, she did not directly speak
with Petitioner’s PCP, Dr. Esquivel, regarding Petitioner’s condition. Id. at 77.
Like Ms. Hurley, Ms. Fox made a number of care recommendations based upon
Petitioner’s health status and current needs. The remaining disputed life care items are discussed
in greater detail below.
3

Case 1:20-vv-01262-UNJ Document 65 Filed 03/05/24 Page 4 of 12
III. PARTIES’ REMAINING DAMAGES CONTENTIONS
Based on the categories of care identified by the parties, there are several remaining items
in dispute, as discussed below.
A. Home Health Aide
The first item in dispute is the appropriate amount of home health aide Petitioner requires.
Relying on Petitioner’s medical records and the multiple site visits, Ms. Hurley testified that
Petitioner’s needs have increased since drafting her life care plan and following the death of
Petitioner’s wife. Tr. at 18–19. Ms. Hurley noted that Petitioner is currently living alone, with his
two sons living nearby to help when they can; however, because his needs have increased “he is
not safe in the home without care.” Id. Thus, Ms. Hurley recommended twenty-eight hours per
week through 2025, increasing to forty-two hours per week from 2026 to life end. Id. at 20–21;
Hurley Rep. at 4; Hurley Supp. Rep. at 2. Ms. Hurley testified that she disagrees with the 20
hour/week recommendation offered by Respondent’s life care planner, Ms. Fox, noting that
Petitioner’s GBS is “really impeding his balance, his strength, [and] his stamina.” Tr. at 21.
Overall, Ms. Hurley opined that the hours she recommended are not only medically necessary but
are “required for him [] to help him with his activities of daily living, [and] being able to live each
day [by] not putting himself in jeopardy [or] in danger of injury.” Id. at 21–22.
Respondent’s life care planner, Ms. Fox, recommended twenty hours per week for home
health aide to help Petitioner with his overall needs related to his GBS—which includes some
ambulatory care, such as bathing and showering, help with general lifting, etc. Tr. at 82. Ms. Fox
did not recommend that the number of hours increase overtime because Petitioner’s GBS has been
stable according to the most recently filed medical records. Id. at 82; Ex. 23. Instead, Ms. Fox
briefly emphasized Petitioner’s comorbidities—stating that, among other things, he suffered from
Type 2 diabetes, he had diabetic neuropathy, ulcerations, and cellulitis, as well as low platelets and
anemia. Id. at 82–83.
B. Gym and Water Therapy
Petitioner requests a fitness center membership, which includes a one-time enrollment fee
of $500.00 plus an annual fee of $3,540.00. Hurley Rep. at 3. The requested fitness center is in
Petitioner’s neighborhood and provides strength training, water therapy, and other rehabilitation
programs. Tr. 22; Hurley Rep. at 5; Hurley Supp. Rep. at 2; Hurley Second Supp. Rep. at 1. In
addition, Ms. Hurley testified that this particular fitness center also provides a social aspect for
Petitioner—noting that “[h]e doesn’t have anything social at all except for his kids coming over. .
. . ” Tr. at 23. She further testified that an alternative gym, such as a Planet Fitness or LA Fitness,
would not be a viable option for Petitioner because they do not offer warm water therapy and they
are not nearby or easily accessible. Id. Ms. Hurley clarified that Petitioner would be joining only
4

Case 1:20-vv-01262-UNJ Document 65 Filed 03/05/24 Page 5 of 12
the fitness center, not the accompanying country club, and that the fitness center would be an
entirely separate cost. Id. at 24.4
Respondent disagrees with Petitioner’s choice of particular fitness center (the one located
within Petitioner’s neighborhood). Ms. Fox stated that “[i]f Mr. Grant needs therapy . . . he can
obtain therapy, as we discussed, through a recommendation from his physician at no cost. Therapy
can include warm water therapy if that is what [is] medically necessary.” Tr. at 81. She further
stated that the particular fitness center recommended by Petitioner is a country club, and that the
only way one can become a member and utilize its amenities (i.e., the pool) is to become a member
of the country club. Id. Moreover, Ms. Fox noted that she confirmed with two individuals
associated with the fitness center that the pool is an outdoor pool and only open from Memorial
Day to Labor Day. Id. Because Petitioner has the ability to benefit from therapy, including warm
water therapy, through the recommendation of his physician, Ms. Fox maintains her position that
this fitness center membership is not medically necessary.
C. Electric Wheelchair, Scooter & Powerchair
Petitioner requests an electric wheelchair, scooter, and powerchair. Ms. Hurley stated that
Petitioner currently uses a wheeled walker with a seat, but that this was not a safe assistive device
for Petitioner—further stating that Petitioner does not have any balance and if his legs were to give
out, he would fall and hit his face on the seat or elsewhere. Tr. at 25. Instead, Ms. Hurley
recommended an electric power scooter to get around the house more easily, and an electric
wheelchair for getting to doctor’s appointments and commuting longer distances. Id. She further
testified that the electric wheelchair she recommended would be covered by Petitioner’s insurance,
whereas the electric power scooter would not. Id. at 25–26. Based on her last virtual visit with
Petitioner and on the recommendations of Petitioner’s PCP, Dr. Esquivel, Ms. Hurley opined that
both an electric wheelchair and an electric power scooter are medically necessary given
Petitioner’s current status. Id. at 26.
Respondent disagrees with this recommendation. Ms. Fox stated that under Petitioner’s
insurance plan, one mobility device will be covered, as “that is the standard for Medicare and any
Medicare supplemental insurance such as TriCare”—including associated maintenance. Tr. at 84.
She further testified that Petitioner currently only uses a cane and a wheeled walker, but that if he
determined that he would like to get either an electric wheelchair or electric scooter, he would
simply need to get a prescription from his physician, and then it would be covered by his insurance.
Id. at 85. Ms. Fox stated that, based upon her review of the medical records, there was no indication
that Petitioner communicated with Dr. Esquivel requesting a mobility device or that Dr. Esquivel
specifically recommended the use of such a device. Id. at 85–86.
4 As additional support, Petitioner filed an email from the sales director at the fitness center in question which provides
a price breakdown for the social/fitness membership fees and associated monthly dues. See Ex. 26 (ECF No. 58-1).
5

Case 1:20-vv-01262-UNJ Document 65 Filed 03/05/24 Page 6 of 12
D. Rolling Shower Chair
Petitioner requests $715.99 (now, and thereafter every ten years for the remainder of his
life) for a rolling shower chair. Tr. at 26–27; Hurley Rep. at 7; Hurley Supp. Rep. at 4; Hurley
Second Supp. Rep. at 2. Ms. Hurley testified that Petitioner has difficulty lifting his legs to get in
the shower, and that a rolling shower chair would not only allow home health aide to assist
Petitioner but provide seating in the shower. Tr. at 27. Ms. Hurley further opined that a rolling
shower chair is medically necessary for Petitioner due to his GBS. Id.
Respondent denies the need for a rolling shower chair. Tr. at 90; Fox Supp. Nursing
Assessment at 4. In her supplemental report, Ms. Fox noted that Petitioner is requesting home
bathroom modifications that include a walk-in shower with grab bars and a built-in seating. Id.
Therefore, she was unsure why Petitioner would also need a rolling shower chair. Id.
E. Cleaning and Lawn Services
Petitioner requests $7,200.00 (now, and thereafter every ten years for the remainder of his
life) for weekly cleaning services, plus $3,832.00 for the same time interval for monthly lawn
maintenance. Tr. at 27; Hurley Rep. at 8; Hurley Supp. Rep. at 4–5; Hurley Second Supp. Rep. at
2. Ms. Hurley testified that Petitioner is no longer able to do either activity himself—stating that
currently if the house is to be cleaned or the lawn maintained, it would have to be done by a family
member. Tr. at 27–28. She stated in her supplemental report that Petitioner “used to assist [his
wife] with weekly cleaning and now is unable to” as he lives alone. Hurley Supp. Rep. at 4. Ms.
Hurley also noted that “lawn maintenance is not a typical expense for homeowners that take care
of their own property” and that Petitioner “should not be required to assume this expense that he
never incurred prior to his GBS.” Id. at 5. Ms. Hurley maintains that but for Petitioner’s GBS,
Petitioner would be cleaning his house and maintaining the exterior of his house himself. Tr. at
28–29.
Regarding lawn care services, Ms. Fox noted in her supplemental report that Ms. Hurley
requested additional home health aide for Petitioner, stating that as he gets older, he will require
more hours. However, Ms. Fox maintains that if Petitioner is claiming normal problems associated
with aging, which is typical for senior citizens, then it is inherently unrealistic to assume he would
continue providing lawn care and maintenance services himself even if not vaccine-injured. Fox
Supp. Nursing Assessment at 4–5. At the same time, however, Ms. Fox noted that even if lawn
care maintenance is a typical homeowner’s expense and responsibility, she “would not want to see
[Petitioner] doing lawn work with diabetes and chronic foot injuries. Whether he had GBS or not,
I would not recommend, as a nurse, someone with diabetes in his condition to do any kind of lawn
work.” Tr. at 89.
As for cleaning services, Ms. Fox noted in her supplemental report that Petitioner requested
weekly cleaning to help with vacuuming, dusting, and changing bed linens, as Petitioner is no
longer able to perform these tasks on his own. Fox Supp. Nursing Assessment at 4. However, Ms.
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Fox testified that she increased the number of hours for home health aide, who she felt would be
capable of some basic cleaning and meal preparation tasks. Id.; Tr. at 90. She further testified that
“[she] would assume that [Petitioner] would need some help with housekeeping because of his
diabetes. He also, again, has anemia, so he gets tired [but that] those do not appear to be related to
[his] GBS.” Tr. at 90. Moreover, cleaning services would be considered ordinary or routine
expenses typically assumed by the homeowner. Id.
F. Adjustable Bed(s)
Petitioner requests $4,970.00 (now, and thereafter every ten years for the remainder of his
life) for an adjustable bed and therapeutic mattress. Tr. at 29; Hurley Rep. at 7; Hurley Supp. Rep.
at 4; Hurley Second Supp. Rep. at 2. Ms. Hurley testified that a standard hospital bed would be
too short for Petitioner, and that he “needs something that can move up in the back, up by the feet,
and that can help him when he gets out of bed. . . .” Id. She further testified that a hospital bed is
inappropriate for Petitioner, and would not allow him to transfer in and out of bed independently
and more safely like an adjustable bed would. Tr. at 29–30. Ms. Hurley noted that an adjustable
bed is medically necessary and further supported by Petitioner’s PCP. Id. at 30.
Respondent disagrees with Petitioner’s request for hi-low adjustable bed. Tr. at 91; Fox
Report at 4; Fox Supp. Nursing Assessment at 4. Ms. Fox stated in her supplemental report that
Petitioner’s request for such a bed is to help prevent falling and provide proper position for his
neuropathic pain. However, “[t]here was no mention of pain during the videoconference call. Fox
Supp. Nursing Assessment at 4. But she did agree that Petitioner noted he does not feel his feet
beneath him when walking. Id. Ms. Fox also testified that should Petitioner require a hospital bed,
not only do they come in different sizes to accommodate a patient’s individualized needs, but that
it would be provided for and paid for by Medicare and TriCare with a prescription from his treating
physician. Tr. at 91. Moreover, Ms. Fox contends that “as an aside” there are cheaper alternative
hi-lo adjustable beds than what Ms. Hurley recommended, and that the price of the bed proposed
in Ms. Hurley’s life care plan is somewhat excessive. Id.
G. Home Bathroom Modifications
Petitioner requests a one-time cost of $16,640.00 for home bathroom modifications. Tr. at
31; Hurley Supp. Rep. at 5. Ms. Hurley testified that the home modifications would make
Petitioner’s current shower more accessible—allowing for a roll-in shower and raised toilet. Id.
Mr. Hurley testified that the requested materials for the home modifications would likely be more
expensive today; however, she further stated that she did not have any issues with the estimates
that were provided and incorporated into her life care plan. Tr. at 32.
Respondent’s life care planner, Ms. Fox, testified that she was not provided with any
photographs of Petitioner’s bathroom and thus was somewhat limited in her ability to comment on
this particular recommendation. Tr. at 86. However, Ms. Fox noted that she based her
recommendation off the estimate that was provided by the contractor. Id. She stated that “[i]n most
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modifications to the home, including bathroom and kitchens, contractors provide an allowance for
materials because they do range in cost, and that’s one of the biggest variables of cost.” Id. Here,
the allowance provided also includes projected costs for shower tile and a shower faucet
replacement. Ms. Fox, however, noted the extensive range of choices in tile and material and
offered cheaper, alternative pricing based upon review of the materials offered at Home Depot.
Id.; Ex. 19 at 6–7; Fox Supp. Nursing Assessment at 5. Thus, Ms. Fox recommended a total
allowance of $15,330.00 for Petitioner’s home bathroom modifications—stating that her only
adjustment with respect to the estimate is that the allotment for materials not be at the highest end.
Fox Nursing Assessment at 5. She otherwise agrees that a shower seat and grab bars would be
useful for Petitioner given his health status. Tr. at 89–90.
IV. LEGAL FRAMEWORK
A. Lost Wages – Past and Future
The Vaccine Act provides for recovery of “actual and anticipated loss of earnings
determined in accordance with generally recognized actuarial principles and projections,” where
the injured party’s “earning capacity is or has been impaired by reason of such person’s vaccine-
related injury.” Section 15(a)(3)(A). The calculation of lost earnings damages must be performed
in a “cautious manner” in accordance with generally recognized principles and projections.”
Brown v. Sec’y of Health & Hum. Servs., No. 00-182V, 2005 WL 2659073, at *6 (Fed. Cl. Spec.
Mstr. Sept. 21, 2005) (citing Section 15(a)(3)(A)).
Compensation awarded for a petitioner’s anticipated loss of earnings may not be based on
speculation. J.T. v. Sec’y of Health & Hum. Servs., No. 12-618V, 2015 WL 5954352, at *7 (Fed.
Cl. Spec. Mstr. Sept. 17, 2015) (indicating Section 15(a)(3)(A) “des not envision that ‘anticipated
loss of earnings’ includes speculation” and denying to calculate lost wages on a planned business
venture); Dillenbeck v. Sec’y of Health & Hum. Servs., 147 Fed. Cl. 131, 139 (2020) (citing J.T.,
2015 WL 5954352, at *7). Accordingly, it is not enough to substantiate such a request with some
evidence, if the submissions offered ultimately rely on speculated (if somewhat informed)
“guesses” about what a claimant might have earned under optimal conditions. See, e.g., Moreland
v. Sec’y of Health & Hum. Servs., No. 18-1319V, 2021 WL 10469047 (Fed. Cl. Spec. Mstr. Sept.
2, 2022) (denying injured real estate agent’s claim of lost commissions; although petitioner
substantiated her claim with evidence, she could not demonstrate her expectation of commissions
or other real estate-related income was more than a reasoned hope).
B. Life Care Items
Compensation awarded pursuant to the Vaccine Act shall also include “[a]ctual
unreimbursable expenses incurred from the date of the judgment awarding such expenses and
reasonable projected unreimbursable expenses” that:
(i) result from the vaccine-related injury for which the [P]etitioner seeks
compensation;
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(ii) have been or will be incurred by or on behalf of the person who suffered
such injury; and
(iii) (I) have been or will be for diagnosis and medical or other remedial care
determined to be reasonably necessary, or (II) have been or will be for
rehabilitation, developmental evaluation, special education, vocational
training and placement, case management services, counseling, emotional
or behavioral therapy, residential and custodial care and service expenses,
special equipment, related travel expenses, and facilities determined to be
reasonably necessary.
§ 15(a)(1)(A).
“[R]easonable projected unreimbursable expenses” must be shown to be “reasonably
necessary.” § 15(a)(1)(A)(iii). “Special masters have characterized this phrase as a ‘vague
instruction’ and a standard for which there is ‘no precise’ definition” Lerwick ex rel. B.L. v. Sec’y
of Health & Hum. Servs., No. 06-847V, 2014 WL 3720309, at *5 (Fed. Cl. Spec. Mstr. June 30,
2014); see also I.D., 2013 WL 2448125, at *6 (defining “reasonably necessary” to mean “that
which is required to meet the basic needs of the injured person . . . but short of that which may be
required to optimize the injured person’s quality of life” (quoting Scheinfield v. Sec’y of Health &
Human Servs., No. 90-212V, 1991 WL 94360, at *2 (Cl. Ct. Spec. Mstr. May 20, 1991))); Bedell
v. Sec’y of Health & Hum. Servs., No. 90-765V, 1992 WL 2666285 (Cl. Ct. Spec. Mstr. Sept. 18,
1992) (defining “reasonably necessary” to mean “more than merely barely adequate, but less than
the most optimal imaginable”); Alonzo v. Sec’y of Health & Hum. Servs., No. 18-1157V, 2023 WL
5846682, at *11 (Fed. Cl. Spec. Mstr. Aug. 14, 2023).
ANALYSIS
I. Lost Wages
In the Initial Damages Ruling, I found that Respondent’s calculation of Petitioner’s actual
lost wages was better-defended and explained, as it more credibly and persuasively relied on what
Petitioner’s tax returns disclosed. Initial Damages Ruling at 11; see also Opp. at 6; Ex. 21 at 101,
line 29; Ex. D at 1–3. Based on Respondent’s calculation, I awarded Petitioner $9,745.74 in actual
lost wages—accounting for October 2018 through the end of 2021 (or up until the point the parties
had briefed the issue). However, using the same figure I relied upon in my initial ruling, I am going
to allow an additional two years of actual lost wages, to include what Petitioner would have earned
in 2022 and 2023 (since the hearing on this issue was held in October 2023, and the prior basis for
my determination as to the propriety of lost wages did not change as a result of the hearing). Thus,
Petitioner is additionally awarded $5,473.66 in actual lost wages. Tr. at 5; Initial Damages Ruling
at 11.
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As for lost future wages, I indicated to the parties at hearing that I would permit an award,
based on my analysis of the issue in light of their briefing of the topic. Tr. at 5–8. In short,
Petitioner’s briefing persuasively established that some lost wages were appropriate. Even though
Petitioner has lived beyond what actuarial principles would predict for a person in calculating lost
wages in the future, it is acceptable (and in fact proper) to take into account his actual
circumstances—which here are that but for his injury, he would likely have still been able to
perform his job tasks (in the more limited, part-time manner that he was engaging in them at the
time of vaccination) despite his advanced age. Accordingly, I will award two additional years of
such lost wages (based on the assumption Petitioner could continue to work in 2024 and 2025). Id.
at 8.
As noted at hearing, however, in calculating that sum I will rely upon the same annual
figure offered by Respondent, and reduce it to its net present value and apply my own calculation
based upon what I have done in prior cases. Gruba v. Sec’y of Health & Hum. Servs., No. 19-
1157V, 2021 WL 1925630 (Fed. Cl. Spec. Mstr. Apr. 13, 2021) (adopting the parties’ proposed
1.5 percent net discount rate). Here, I will apply a 1.25% offset rate, resulting in an award of
$5,372.71.
II. Life Care Plan Elements
Overall, Respondent’s life care planner, Laura Fox, more persuasively evaluated
Petitioner’s needs and current health status. She also did a better job taking into account Program
guidelines for what kinds of costs are allowable. At the same time, Ms. Hurley’s testimony
confirmed his need for some cost categories exceeding what Respondent was willing to accept. I
provide a brief run-down of my findings on the disputed categories below.
A. Home Health Aide
Petitioner will be granted 20 hours per week for life for home health aide. Petitioner did
not adequately demonstrate why 28 hours per week for the next two years, and then thereafter
increased to 42 hours per week until life end, is reasonable and medical necessary, since his most
recent medical records indicate that his GBS is stable and his other comorbidities well-maintained.
B. Gym and Water Therapy
Petitioner will not be awarded any costs in connection with a fitness center membership.
Based upon the evidence filed, it appears Petitioner would seek to utilize the fitness facilities at a
nearby county club. But it remains unclear whether Petitioner’s fitness center membership would
be limited to that, or involve other country club benefits and services independent of the gym.
Petitioner simply has not adequately substantiated the propriety of this cost as a damages
component, and he has not otherwise offered a figure or evidence that would permit an award of a
more basic gym membership at some other facility. Thus, because it is at all times a petitioner’s
burden to substantiate the reasonableness of any damages component he requests, and because
Petitioner has been provided ample time to defend this sum, it is denied.
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C. Electric Wheelchair, Scooter, & Powerchair
Petitioner currently uses a cane and a rolling walker to ambulate. Although it has been
established that Petitioner’s future care needs might include a single assistive device such as a
wheelchair or scooter, it has not been shown that Petitioner’s existing insurance would not cover
the item. I therefore do not make specific provision for this, or find that more than one device is
necessary.
D. Rolling Shower Chair
Petitioner has not shown that it is necessary for him to have a rolling shower chair, since
the bid offered by the contractor for bathroom modifications includes a walk-in shower.
E. Cleaning and Lawn Services
Petitioner will not be granted costs for homes cleaning services. This is a typical
homeowner expense, and Petitioner has not adequately demonstrated that he can no longer do any
typical tasks associated with cleaning except that it may take longer to complete, or that the
circumstances of his vaccine injury justify a special allowance for this sum.
Petitioner will, however, be granted costs associated with lawn services. Respondent
testified that she would not recommend any one in Petitioner’s condition to partake in tasks
associated with maintaining and servicing lawns, and this is a different category of service that
more directly implicates the limitations placed on Petitioner by his injury. Therefore, Petitioner is
awarded $3,832.08 for this service, on a one-time basis as well as the schedule projected by the
life care plan.
F. Adjustable Bed
Petitioner will not be granted costs for a hi-low adjustable bed. Respondent made a
compelling argument that a hospital bed, if deemed medically necessary, would be provided by
Petitioner’s insurance provider.
G. Home Bathroom Modifications
Respondent agrees home bathroom modifications are “reasonably necessary,” but argues
that the allowance should not be at the highest range for materials. Respondent convincingly
established that a slightly reduced allowance is appropriate, by demonstrating the availability for
alternative material options based on what a comparable store, such as Home Depot, would
provide. Therefore, Petitioner will be granted an allowance of a one-time payment of $15,330.00
for home bathroom modifications. Fox Supp. Rep. at 5.
CONCLUSION
Based on the foregoing, and in the exercise of the discretion afforded to me in determining
the propriety of a damages award, Petitioner is determined to be entitled to the following sums:
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(1) $5,473.66 in lost actual wages (in addition to the sum already awarded in the Initial
Damaged Ruling);
(2) $5,473.66 in future lost wages, discounted to $5,372.71;
(3) An immediate payment of $19,162.08 (to reflect the one-time payments of $3,832.08
for Lawn Maintenance, plus $15,330.00 for Home Bathroom Modifications).
On or before Friday, March 29, 2024, the parties shall file a proffer or stipulation to include
the amounts set forth in the prior Initial Damages Ruling, the sums above, plus an amount sufficient
to purchase the annuity contract for future care needs (which will include the future lawn service
costs
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
12

================================================================================
DOCUMENT 4: USCOURTS-cofc-1_20-vv-01262-3
Date issued/filed: 2024-05-06
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 04/09/2024) regarding 71 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-01262-UNJ Document 75 Filed 05/06/24 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1262V
* * * * * * * * * * * * * * * * * * * * * * * * *
*
THOMAS GRANT, * Chief Special Master Corcoran
*
Petitioner, * Filed: April 9, 2024
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
David J. Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Zoe Wade, U.S. Dep’t of Justice, Washington, DC, Respondent.
DECISION AWARDING DAMAGES1
On September 24, 2020, Thomas Grant filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petitioner alleged that
he suffered Guillain-Barré syndrome as a result of an influenza (“flu”) vaccine he received on
October 3, 2018. Petition (ECF No. 1) (“Pet.”) at 1.
Petitioner was found entitled to damages in 2021 (ECF No. 23), and then on August 31,
2023, I issued Findings of Fact and Conclusions of Law Regarding Damages, determining therein
that Petitioner was entitled to $180,000.00 for pain and suffering, plus $9,475.75 for prior lost
wages. See Findings of Fact, dated Aug. 31, 2023 (ECF No. 49) (“Initial Damages Ruling”). The
1 Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its present form. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
1

Case 1:20-vv-01262-UNJ Document 75 Filed 05/06/24 Page 2 of 9
parties were unable to resolve several remaining damages components, however, and therefore a
Damages Hearing was held on December 18, 2023, in Washington, D.C.
After consideration of all the evidence presented at that hearing, I found that Petitioner was
also entitled to (a) $5,473.66 for an additional two years of lost past wages calculated through
2023, and (b) $5,372.71 for future lost wages through 2025. See Supplemental Damages Ruling,
dated Feb. 9, 2024 (ECF No. 64) (“Supp. Damages Ruling”). The Ruling further awarded costs for
some disputed items in the parties’ competing life care plans. Supp. Damages Ruling at 10–11.
The parties were subsequently directed to file a proffer or stipulation that took into account
the amounts set forth in the Initial and Supplemental Damages Rulings. On April 8, 2024,
Respondent filed a proffer proposing an award of compensation. (ECF No. 70). I have reviewed
the file, and based upon that review I conclude that Respondent’s proffer (as attached hereto) is
reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth herein.
The Proffer awards:
• A lump sum payment of $240,210.84, representing compensation for pain and
suffering ($180,000.00), total lost earnings as described above ($20,322.12), and
life care expenses (including home health aide, lawn services, and home bathroom
modifications) expected to be incurred during the first year after judgment
($39,888.72), in the form of a check payable to Petitioner; and
• An amount sufficient to purchase an annuity contract to provide payments for the
future care items in the life care plan, as described in the attached Proffer.
Proffer at II. These amounts represent compensation for all elements of compensation under 42
U.S.C. § 300aa-15(a) to which Petitioner is entitled.
I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner, in accordance with the forementioned terms. 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.3
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.
2

Case 1:20-vv-01262-UNJ Document 75 Filed 05/06/24 Page 3 of 9
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
THOMAS GRANT,
Petitioner, No. 20-1262V
Chief Special Master Corcoran
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S STATUS REPORT REGARDING COMPENSATION
TO BE AWARDED AND FORM OF AWARD
On February 9, 2024, the Chief Special Master issued a Supplemental Damages Ruling
(ECF No. 64), and directed the parties to file a proffer or stipulation to include the amounts set forth
in the Court’s Findings of Fact and Conclusions of Law Regarding Damages (“Initial Damages
Ruling”) (ECF No. 49), additional sums awarded in the Supplemental Damages Ruling, plus an
amount sufficient to purchase the annuity contract for future care needs.
Respondent submits this Status Report providing the Chief Special Master with a statement
of all damages, including those that the parties have agreed upon as well as those decided by the
Chief Special Master, in the manner that contains the information needed for the Chief Special
Master’s damages decision.1
While preserving his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the
Chief Special Master’s August 31, 2023 Findings of Fact and Conclusions of Law Regarding
Damages (ECF No. 49) (“Initial Damages Ruling”), and February 9, 2024 Supplemental
Damages Ruling (ECF No. 64), respondent submits the following status report regarding
1 Respondent submits this status report on behalf of respondent only.
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damages.
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Laura E. Fox, MSN, BSN, RN, CNS, and CLCP,
and petitioner engaged Roberta Hurley, to provide an estimation of petitioner’s future vaccine-
injury-related needs. Life care plans were filed in this case. Agreed-upon life care items, as
well as life care items awarded by the Chief Special Master, are illustrated by the chart entitled
“Appendix A: Items of Compensation for Thomas Grant,” attached to this Status Report as Tab
A.2
B. Lost Earnings
Based upon the evidence of record, petitioner is entitled to an award for lost earnings
under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). However, the parties did not agree on the
amount of an award. On August 31, 2023, the Chief Special Master awarded $9,475.75 for
“lost prior wages.” Initial Damages Ruling, at 2 (ECF No. 49). On February 9, 2024, the Chief
Special Master awarded “$5,473.66 for additional two years of lost past wages through 2023,
plus $5,372.71 for future lost wages through 2025.” Supplemental Damages Ruling, at 2 (ECF
No. 64). The award for future lost earnings reflects the application of a 1.25% net discount rate.
Supplemental Damages Ruling, at 10 (ECF No. 64). The total award for lost earnings is
$20,322.12.
2 The chart at Tab A illustrates respondent’s position on annual amounts for life care items and,
pursuant to the Chief Special Master’s Supplemental Damages Ruling, includes the Chief Special
Master’s award of the following life care items: home health aide from the date of judgment
through the remainder of petitioner’s life; lawn services from the date of judgment through the
remainder of petitioner’s life; and home bathroom modifications in an initial lump sum. (Please
see footnote 3 on award for home bathroom modifications.) 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.
2

Case 1:20-vv-01262-UNJ Document 75 Filed 05/06/24 Page 5 of 9
C. Pain and Suffering
Based upon the evidence of record, petitioner is entitled to an award for pain and
suffering under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(4). However, the parties did not agree
on the amount of an award. On August 31, 2023, the Chief Special Master awarded
$180,000.00 for pain and suffering. Initial Damages Ruling, at 2 (ECF No. 49).
II. Form of the Award
Respondent requests that compensation provided to petitioner be made through a
combination of a lump sum payment and future annuity payments as described below, and
request that the Chief Special Master’s Decision on Damages and the Court’s judgment award the
following3:
A. A lump sum payment of $240,210.84, representing compensation for life care
expenses (including home health aide, lawn services, and home bathroom modifications4
awarded by the Chief Special Master) expected to be incurred during the first year after
judgment ($39,888.72), lost earnings ($20,322.12), and pain and suffering ($180,000.00), in
the form of a check payable to petitioner.
B. An amount sufficient to purchase an annuity contract,5 subject to the conditions
described below, that will provide payments for the life care items contained in the life care plan,
3 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 and future pain and suffering.
4 Respondent believes the award for home bathroom modifications should be $15,300.00, as
recommended in the Fox Supplemental Report at page 5, referenced in the Supplemental Damages
Ruling at 11. It is assumed that $15,330.00 in the Supplemental Damages Ruling was a
typographical error and has been corrected accordingly.
5 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or
more life insurance companies.
3

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as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company6 from
which the annuity will be purchased.7 Compensation for Year Two (beginning on the first
anniversary of the date of judgment) and all subsequent years shall be provided through
respondent’s purchase of an annuity, which annuity shall make payments directly to petitioner,
Thomas Grant, only so long as Thomas Grant 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 recommends that a four percent (4%) growth rate should be applied to all
non- medical life care items, and a five percent (5%) growth rate should be applied to all medical
life care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid through
6 The Life Insurance Company must have a minimum of $250,000,000 capital and surplus,
exclusive of any mandatory security valuation reserve. The Life Insurance Company must have
one of the following ratings from two of the following rating organizations:
a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;
b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;
c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-,
AA, AA+, or AAA;
d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability
Rating: AA-, AA, AA+, or AAA.
7 Petitioner will be required to authorize 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.
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Case 1:20-vv-01262-UNJ Document 75 Filed 05/06/24 Page 7 of 9
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.
2. Life-contingent annuity
Petitioner will continue to receive the annuity payments from the Life Insurance
Company only so long as he, Thomas Grant, 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 Thomas Grant’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, Thomas Grant: $240,210.84
B. An amount sufficient to purchase the annuity contract
described above in section II. B.
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
COLLEEN C. HARTLEY
Assistant Director
Torts Branch, Civil Division
5

Case 1:20-vv-01262-UNJ Document 75 Filed 05/06/24 Page 8 of 9
/s/Zoë R. Wade
ZOË R. WADE
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 598-7696
Email: zoe.wade@usdoj.gov
DATED: April 8, 2024
6

Case 1:20-vv-01262-UNJ Document 75 Filed 05/06/24 Page 9 of 9
Corrected Appendix A: Items of Compensation for Thomas Grant Page 1 of 1
Lump Sum
Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-Life
2024 2025-Life
Prescritopn Medications 5% *
Neurologist 5% *
Primary Care 5% *
Urology/Nephrologist 5% *
Physical Therapy 4% *
Occupational Therapy 4% *
Home Health Aide 4% M 19,760.00 19,760.00
Lightweight Electric WC 4% *
Wheechair 4% *
Walker 4% 146.16 29.23
Adjustable Cane 4% 25.49 5.10
Cane Tips 4% 12.99 12.99
Lift Chair 4% * 812.00
Lawn Services 4% 3,832.08 3,832.08
Home Bathroom Modification 4% 15,300.00
Corrected Lost Earnings 20,322.12
Pain and Suffering 180,000.00
Annual Totals 240,210.84 23,639.40
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 ($39,888.72), lost earnings ($20,322.12), and pain and suffering ($180,000.00): $240,210.84.
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.

================================================================================
DOCUMENT 5: USCOURTS-cofc-1_20-vv-01262-cl-extra-10735405
Date issued/filed: 2024-05-06
Pages: 1
Docket text: Supplementary opinion from CourtListener cluster 10268815
--------------------------------------------------------------------------------
               In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 20-1262V

*************************
                      *
THOMAS GRANT,         *                                       Chief Special Master Corcoran
                      *
          Petitioner, *                                       Filed: April 9, 2024
                      *
v.                    *
                      *
SECRETARY OF HEALTH   *
AND HUMAN SERVICES,   *
                      *
          Respondent. *
                      *
*************************

David J. Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.

Zoe Wade, U.S. Dep’t of Justice, Washington, DC, Respondent.


                                DECISION AWARDING DAMAGES 1
       On September 24, 2020, Thomas Grant filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program”). 2 Petitioner alleged that
he suffered Guillain-Barré syndrome as a result of an influenza (“flu”) vaccine he received on
October 3, 2018. Petition (ECF No. 1) (“Pet.”) at 1.

        Petitioner was found entitled to damages in 2021 (ECF No. 23), and then on August 31,
2023, I issued Findings of Fact and Conclusions of Law Regarding Damages, determining therein
that Petitioner was entitled to $180,000.00 for pain and suffering, plus $9,475.75 for prior lost
wages. See Findings of Fact, dated Aug. 31, 2023 (ECF No. 49) (“Initial Damages Ruling”). The




1
  Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its present form. Id.
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

                                                         1
parties were unable to resolve several remaining damages components, however, and therefore a
Damages Hearing was held on December 18, 2023, in Washington, D.C.

       After consideration of all the evidence presented at that hearing, I found that Petitioner was
also entitled to (a) $5,473.66 for an additional two years of lost past wages calculated through
2023, and (b) $5,372.71 for future lost wages through 2025. See Supplemental Damages Ruling,
dated Feb. 9, 2024 (ECF No. 64) (“Supp. Damages Ruling”). The Ruling further awarded costs for
some disputed items in the parties’ competing life care plans. Supp. Damages Ruling at 10–11.

        The parties were subsequently directed to file a proffer or stipulation that took into account
the amounts set forth in the Initial and Supplemental Damages Rulings. On April 8, 2024,
Respondent filed a proffer proposing an award of compensation. (ECF No. 70). I have reviewed
the file, and based upon that review I conclude that Respondent’s proffer (as attached hereto) is
reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth herein.

         The Proffer awards:

              •   A lump sum payment of $240,210.84, representing compensation for pain and
                  suffering ($180,000.00), total lost earnings as described above ($20,322.12), and
                  life care expenses (including home health aide, lawn services, and home bathroom
                  modifications) expected to be incurred during the first year after judgment
                  ($39,888.72), in the form of a check payable to Petitioner; and

              •   An amount sufficient to purchase an annuity contract to provide payments for the
                  future care items in the life care plan, as described in the attached Proffer.
Proffer at II. These amounts represent compensation for all elements of compensation under 42
U.S.C. § 300aa-15(a) to which Petitioner is entitled.
        I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner, in accordance with the forementioned terms. 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. 3


         IT IS SO ORDERED.


                                                                          /s/ Brian H. Corcoran
                                                                          Brian H. Corcoran
                                                                          Chief Special Master




3
 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.

                                                           2
                     IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                               OFFICE OF SPECIAL MASTERS


    THOMAS GRANT,

                  Petitioner,                           No. 20-1262V
                                                        Chief Special Master Corcoran
    v.                                                  ECF

    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                  Respondent.



             RESPONDENT’S STATUS REPORT REGARDING COMPENSATION
                     TO BE AWARDED AND FORM OF AWARD

          On February 9, 2024, the Chief Special Master issued a Supplemental Damages Ruling

(ECF No. 64), and directed the parties to file a proffer or stipulation to include the amounts set forth

in the Court’s Findings of Fact and Conclusions of Law Regarding Damages (“Initial Damages

Ruling”) (ECF No. 49), additional sums awarded in the Supplemental Damages Ruling, plus an

amount sufficient to purchase the annuity contract for future care needs.

          Respondent submits this Status Report providing the Chief Special Master with a statement

of all damages, including those that the parties have agreed upon as well as those decided by the

Chief Special Master, in the manner that contains the information needed for the Chief Special

Master’s damages decision. 1

           While preserving his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the

    Chief Special Master’s August 31, 2023 Findings of Fact and Conclusions of Law Regarding

    Damages (ECF No. 49) (“Initial Damages Ruling”), and February 9, 2024 Supplemental

    Damages Ruling (ECF No. 64), respondent submits the following status report regarding



1
    Respondent submits this status report on behalf of respondent only.
                                                   1
    damages.

    I.     Items of Compensation

           A.      Life Care Items

           Respondent engaged life care planner Laura E. Fox, MSN, BSN, RN, CNS, and CLCP,

    and petitioner engaged Roberta Hurley, to provide an estimation of petitioner’s future vaccine-

    injury-related needs. Life care plans were filed in this case. Agreed-upon life care items, as

    well as life care items awarded by the Chief Special Master, are illustrated by the chart entitled

    “Appendix A: Items of Compensation for Thomas Grant,” attached to this Status Report as Tab

    A. 2

           B.      Lost Earnings

           Based upon the evidence of record, petitioner is entitled to an award for lost earnings

    under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). However, the parties did not agree on the

    amount of an award. On August 31, 2023, the Chief Special Master awarded $9,475.75 for

    “lost prior wages.” Initial Damages Ruling, at 2 (ECF No. 49). On February 9, 2024, the Chief

    Special Master awarded “$5,473.66 for additional two years of lost past wages through 2023,

    plus $5,372.71 for future lost wages through 2025.” Supplemental Damages Ruling, at 2 (ECF

    No. 64). The award for future lost earnings reflects the application of a 1.25% net discount rate.

    Supplemental Damages Ruling, at 10 (ECF No. 64). The total award for lost earnings is

    $20,322.12.


2
  The chart at Tab A illustrates respondent’s position on annual amounts for life care items and,
pursuant to the Chief Special Master’s Supplemental Damages Ruling, includes the Chief Special
Master’s award of the following life care items: home health aide from the date of judgment
through the remainder of petitioner’s life; lawn services from the date of judgment through the
remainder of petitioner’s life; and home bathroom modifications in an initial lump sum. ( Please
see footnote 3 on award for home bathroom modifications.) 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.
                                                   2
            C.     Pain and Suffering

            Based upon the evidence of record, petitioner is entitled to an award for pain and

    suffering under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(4). However, the parties did not agree

    on the amount of an award. On August 31, 2023, the Chief Special Master awarded

    $180,000.00 for pain and suffering. Initial Damages Ruling, at 2 (ECF No. 49).

    II.     Form of the Award

            Respondent requests that compensation provided to petitioner be made through a

    combination of a lump sum payment and future annuity payments as described below, and

    request that the Chief Special Master’s Decision on Damages and the Court’s judgment award the

    following 3:

            A. A lump sum payment of $240,210.84, representing compensation for life care

    expenses (including home health aide, lawn services, and home bathroom modifications 4

    awarded by the Chief Special Master) expected to be incurred during the first year after

    judgment ($39,888.72), lost earnings ($20,322.12), and pain and suffering ($180,000.00), in

    the form of a check payable to petitioner.

            B. An amount sufficient to purchase an annuity contract, 5 subject to the conditions

    described below, that will provide payments for the life care items contained in the life care plan,




3
  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 and future pain and suffering.
4
  Respondent believes the award for home bathroom modifications should be $15,300.00, as
recommended in the Fox Supplemental Report at page 5, referenced in the Supplemental Damages
Ruling at 11. It is assumed that $15,330.00 in the Supplemental Damages Ruling was a
typographical error and has been corrected accordingly.
5
 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or
more life insurance companies.
                                               3
    as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company 6 from

    which the annuity will be purchased. 7 Compensation for Year Two (beginning on the first

    anniversary of the date of judgment) and all subsequent years shall be provided through

    respondent’s purchase of an annuity, which annuity shall make payments directly to petitioner,

    Thomas Grant, only so long as Thomas Grant 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 recommends that a four percent (4%) growth rate should be applied to all

    non- medical life care items, and a five percent (5%) growth rate should be applied to all medical

    life care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid through




6
  The Life Insurance Company must have a minimum of $250,000,000 capital and surplus,
exclusive of any mandatory security valuation reserve. The Life Insurance Company must have
one of the following ratings from two of the following rating organizations:

                   a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;

                   b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;

                   c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-,
                   AA, AA+, or AAA;

                   d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability
                   Rating: AA-, AA, AA+, or AAA.

    7
      Petitioner will be required to authorize 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
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.

       2.      Life-contingent annuity

       Petitioner will continue to receive the annuity payments from the Life Insurance

Company only so long as he, Thomas Grant, 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 Thomas Grant’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, Thomas Grant:                   $240,210.84
               B.     An amount sufficient to purchase the annuity contract
                      described above in section II. B.



                                                    Respectfully submitted,

                                                    BRIAN M. BOYNTON
                                                    Principal Deputy Assistant Attorney General

                                                    C. SALVATORE D’ALESSIO
                                                    Acting Director
                                                    Torts Branch, Civil Division

                                                    HEATHER L. PEARLMAN
                                                    Deputy Director
                                                    Torts Branch, Civil Division

                                                    COLLEEN C. HARTLEY
                                                    Assistant Director
                                                    Torts Branch, Civil Division




                                                5
                           /s/Zoë R. Wade
                           ZOË R. WADE
                           Trial Attorney
                           Torts Branch, Civil Division
                           U.S. Department of Justice
                           P.O. Box 146
                           Benjamin Franklin Station
                           Washington, D.C. 20044-0146
                           Tel: (202) 598-7696
                           Email: zoe.wade@usdoj.gov
DATED: April 8, 2024




                       6
                               Corrected Appendix A: Items of Compensation for Thomas Grant                         Page 1 of 1




                                                        Lump Sum
                                                       Compensation Compensation
  ITEMS OF COMPENSATION             G.R.     *    M       Year 1     Years 2-Life
                                                           2024       2025-Life
Prescritopn Medications              5%      *
Neurologist                          5%      *
Primary Care                         5%      *
Urology/Nephrologist                 5%      *
Physical Therapy                     4%      *
Occupational Therapy                 4%      *
Home Health Aide                     4%           M        19,760.00       19,760.00
Lightweight Electric WC              4%      *
Wheechair                            4%      *
Walker                               4%                      146.16            29.23
Adjustable Cane                      4%                       25.49             5.10
Cane Tips                            4%                       12.99            12.99
Lift Chair                           4%      *               812.00
Lawn Services                        4%                    3,832.08         3,832.08
Home Bathroom Modification           4%                   15,300.00
Corrected Lost Earnings                                   20,322.12
Pain and Suffering                                       180,000.00
Annual Totals                                            240,210.84        23,639.40
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 ($39,888.72), lost earnings ($20,322.12), and pain and suffering ($180,000.00): $240,210.84.
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.


================================================================================
DOCUMENT 6: USCOURTS-cofc-1_20-vv-01262-cl-extra-10734916
Date issued/filed: 2024-06-26
Pages: 1
Docket text: Supplementary opinion from CourtListener cluster 10268326
--------------------------------------------------------------------------------
               In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 20-1262V

*************************
                        *
THOMAS GRANT,           *                                     Chief Special Master Corcoran
                        *
          Petitioner,   *                                     Filed: May 28, 2024
                        *
v.                      *
                        *
SECRETARY OF HEALTH     *
AND HUMAN SERVICES,     *
                        *
          Respondent.   *
                        *
*************************

David J. Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.

Zoë Wade, U.S. Dep’t of Justice, Washington, DC, Respondent.

         DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS 1
       On September 24, 2020, Thomas Grant filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program”). 2 Petitioner alleged that
he suffered Guillain-Barré syndrome as a result of an influenza (“flu”) vaccine he received on
October 3, 2018. Petition (ECF No. 1) (“Pet.”) at 1.
        Petitioner was found entitled to damages in 2021 (ECF No. 23), and then on August 31,
2023, I issued a preliminary ruling regarding some damages issues. See Findings of Fact, dated
Aug. 31, 2023 (ECF No. 49) (“Initial Damages Ruling”). Remaining damages were resolved after
a short hearing, and a final award of compensation has issued. Decision, dated Apr. 9, 2024 (ECF
No. 71).



1
  Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its present form. Id.
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
        Petitioner has now filed a motion for a final award of attorney’s fees and costs. Motion,
dated May 6, 2024 (ECF No. 76) (“Mot.”). This is Petitioner’s sole fees and costs request.
Petitioner requests a total of $87,145.51 (reflecting $77,433.00 in fees, plus $9,712.51 in costs) for
the work of his attorneys, David Carney, Adam Green, and a law clerk and paralegal at Green &
Schafle LLC, as well as his previous attorney Kate Westad and a paralegal at SiebenCarey, P.A.,
all incurred during the pendency of this matter. Respondent reacted to the final fees request on
May 22, 2024. Response, dated May 22, 2024 (ECF No. 77) (“Resp.”). Respondent agrees that
Petitioner has satisfied the statutory requirements for a fees and costs award, and otherwise defers
the calculation of the amount to be awarded to my discretion. Resp. at 2–3.
        For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding fees and
costs in the total amount of $87,145.51.
I.     Calculation of Fees
        Because Petitioner’s claim was successful, he is entitled to a fees and costs award—
although only “reasonable” fees or costs may be awarded in the Program. Determining the
appropriate amount of the fees award is a two-part process. The first part involves application of
the lodestar method—“multiplying the number of hours reasonably expended on the litigation
times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1347–48
(Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves
adjusting the lodestar calculation up or down to take relevant factors into consideration. Id. at
1348. This standard for calculating a fee award is considered applicable in most cases where a fee
award is authorized by federal statute. Hensely v. Eckerhart, 461 U.S. 424, 429–37 (1983).
        An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the
proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C.,
for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there
is a substantial difference in rates (the so-called “Davis” exception). Avera, 515 F.3d at 1348
(citing Davis Cty. Solid Waste Mgmt. Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges
for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine
Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at
*19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
       Petitioner requests the following rates for his attorneys, based on the years work was
performed:
                   2019           2020           2021          2022           2023          2024
   David          $325.00        $350.00        $375.00       $400.00        $425.00       $450.00
  Carney
 (Attorney)
Adam Green            --         $400.00        $400.00       $425.00        $425.00           --
 (Attorney)
Evan Baker            --            --             --             --         $200.00           --
 (Attorney)

                                                  2
Law Clerk at           --              --          $150.00         $157.50         $165.00            --
  Green &
Schafle LLC
   Kate G.          $350.00         $350.00            --              --              --             --
   Westad
 (Attorney)
Paralegal at        $145.00         $145.00        $145.00         $145.00         $175.00            --
  Green &
Schafle LLC
Paralegal at           --           $125.00            --              --              --
SiebenCarey,
    P.A.

Mot. at 16–40, 71.

        Ms. Westad (the sole attorney at SiebenCarey to work on this matter) practices in
Minneapolis, Minnesota—a jurisdiction that has been deemed “in forum.” Accordingly, she is
entitled to the rates established in McCulloch, and thereafter embraced by the Office of Special
Masters’ fee schedule. 3 See Dahl v. Sec’y of Health & Hum. Servs., No. 13-98V, 2018 WL
6818741, at *4–6 (Fed. Cl. Spec. Mstr. Nov. 30, 2018). I also deem the time she devoted to the
matter reasonable, and will therefore award it without adjustment.

        The attorneys at Green & Schafle practice in Philadelphia, Pennsylvania—a jurisdiction
that has also been considered “in forum,” meaning they too should receive McCulloch rates. See
Hock v. Sec’y of Health & Hum. Servs., No. 17-168V, 2021 WL 1733520, at *2 (Fed. Cl. Spec.
Mstr. Apr. 8, 2021). The specific hourly rates requested for the attorneys in question, plus their
paralegals and law clerks, are consistent with what has previously been awarded, in accordance
with the Office of Special Masters’ fee schedule. Brewer v. Sec’y of Health & Hum. Servs., No.
20-1864V, 2024 WL 1639126, at *3 (Fed. Cl. Spec. Mstr. Mar. 20, 2024). I thus find no cause to
reduce them in this instance. And the time spent on the matter by these attorneys or paralegals was
reasonable.

II.     Calculation of Costs
       Just as they are required to establish the reasonableness of requested fees, petitioners must
also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed.
Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992).
Reasonable costs include the costs of obtaining medical records and expert time incurred while
working on a case. Fester v. Sec’y of Health & Hum. Servs., No. 10-243V, 2013 WL 5367670, at
*16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as

3
 OSM Attorneys’ Forum Hourly Rate Fee Schedule, https://www.uscfc.uscourts.gov/node/2914 (last visited May 28,
2024).


                                                      3
by not providing appropriate documentation to explain the basis for a particular cost, special
masters have refrained from paying the cost at issue. See, e.g., Gardner-Cook v. Sec’y of Health
& Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

         Petitioner seeks $9,712.51 in outstanding costs, including the filing fee, medical record
retrieval costs, plus costs associated with the work of treating physician, Linda Esquivel, M.D.,
and life care planner Roberta Hurley. Mot. at 3, 60, 63–66. Dr. Esquivel prepared three narrative
reports in this case and submitted an invoice reflecting a total amount of $579.91. 4 Ms. Hurley
prepared a life care plan accompanied by three written reports, and testified in this matter. She
received a retainer of $1,500.00, and submitted an invoice reflecting a total of $4,850.00 (billing
at an hourly rate of $150.00) charged to the matter. Mot. at 63–65. These sums are reasonable for
the work performed, and I do not find any reason to make reductions. The same is true for the other
litigation-related costs.

                                                 CONCLUSION
        Based on the foregoing, and in the exercise of the discretion afforded to me in determining
the propriety of a final fees award, I GRANT Petitioner’s Motion for Attorney’s Fees and Costs.
I award a total of $87,145.51, reflecting (a) $1,997.50 in attorney’s fees in the forum of a check
made jointly payable to Petitioner and Petitioner’s previous counsel, Kate Westad of SiebenCarey,
PA., and (b) $85,148.01 in attorney’s fees and costs, in the forum of a check made jointly payable
to Petitioner and Petitioner’s counsel of record, David Carney of Green & Schafle, LLC.
       In the absence of a motion for review filed pursuant to RFCF Appendix B, the Clerk of the
Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision. 5


         IT IS SO ORDERED.


                                                                         /s/ Brian H. Corcoran
                                                                         Brian H. Corcoran
                                                                         Chief Special Master




4
  The submitted invoice for Dr. Esquivel does not provide a breakdown of the number of hours worked and at what
hourly rate, but instead simply provides a flat rate for her letter writing, written communication, and certified letter
fee. Mot. at 60.

5
 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.

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