The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1683V
Filed: August 2, 2018
UNPUBLISHED
PATRICK D. MCALEESE,
Special Processing Unit (SPU);
Petitioner, Damages Decision Based on Proffer;
v. Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Thomas K. Brown, Brown Law Firm, LLP, Houston, TX), for petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On December 22, 2016, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that he suffered from Guillain-Barre Syndrome
(“GBS”) as a result of an influenza (“flu”) vaccination administered on December 23,
2013. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
On August 1, 2017, a ruling on entitlement was issued, finding petitioner entitled
to compensation for GBS. On July 25, 2018, respondent filed a proffer on award of
compensation (“Proffer”) indicating petitioner should be awarded a lump sum payment
of $839.282.93 representing compensation for life care expenses expected to be
incurred during the first year after judgement ($17,375.32), lost earnings ($555,698.46),
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
pain and suffering (“$250,000.00), and past unreimbursable expenses ($16,209.15).
Proffer at 2-3. In the Proffer, respondent represented that petitioner agrees with the
proffered award. Based on the record as a whole, the undersigned finds that petitioner
is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner:
A lump sum of $839.282.93 representing compensation for life care
expenses expected to be incurred during the first year after
judgement ($17,375.32), lost earnings ($555,698.46), pain and
suffering ($250,000.00), and past unreimbursable expenses
($16,209.15) in the form of a check payable to petitioner, Patrick D.
McAleese; and
An amount sufficient to purchase the annuity contract described in
the Proffer at Section II.B.
This amount represents compensation for all damages that would be available under §
300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
PATRICK D. MCALEESE,
Petitioner,
v. No. 16-1683V
Chief Special Master Dorsey
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLP, to provide an
estimation of Patrick D. McAleese’s future vaccine-injury related needs. On July 27, 2017,
respondent filed a Rule 4(c) Report electing not to defend the case. On August 1, 2017, the
Chief Special Master issued a Decision finding that petitioner was entitled to compensation. For
the purposes of this proffer, the term “vaccine related” is as described in the respondent’s Rule
4(c) Report. All items of compensation identified in the life care plan are supported by the
evidence, and are illustrated by the chart entitled Appendix A: Items of Compensation for Patrick
D. McAleese, attached hereto as Tab A. 1 Respondent proffers that Patrick D. McAleese should
be awarded all items of compensation set forth in the life care plan and illustrated by the chart
attached at Tab A. Petitioner agrees.
1
The chart at Tab A illustrates the annual benefits provided by the life care plan. The annual benefit years
run from the date of judgment up to the first anniversary of the date of judgment, and every year thereafter up to the
anniversary of the date of judgment.
-1-
B. Lost Earnings
The parties agree that based upon the evidence of record, Patrick D. McAleese has
suffered past loss of earnings and will suffer a loss of earnings in the future. Therefore,
respondent proffers that Patrick D. McAleese should be awarded lost earnings as provided under
the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Respondent proffers that the appropriate award
for Patrick D. McAleese’s lost earnings is $555,698.46. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that Patrick D. McAleese should be awarded $250,000.00 in actual
pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
D. Past Unreimbursable Expenses
Evidence supplied by petitioner documents Patrick D. McAleese’s expenditure of past
unreimbursable expenses related to his vaccine-related injury. Respondent proffers that
petitioner should be awarded past unreimbursable expenses in the amount of $16,209.15.
II. Form of the Award
The parties recommend that the compensation provided to Patrick D. McAleese should
be made through a combination of lump sum payments and future annuity payments as described
below, and request that the Chief Special Master’s decision and the Court’s judgment award the
following: 2
A. A lump sum payment of $839,282.93, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($17,375.32), lost earnings
2
Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for
appropriate relief. In particular, respondent would oppose any award for future medical expenses, future lost
earnings, and future pain and suffering.
-2-
($555,698.46), pain and suffering ($250,000.00), and past unreimbursable expenses
($16,209.15), in the form of a check payable to petitioner, Patrick D. McAleese.
B. An amount sufficient to purchase an annuity contract, 3 subject to the conditions
described below, that will provide payments for the life care items contained in the life care plan,
as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company 4 from
which the annuity will be purchased. 5 Compensation for Year Two (beginning on the first
anniversary of the date of judgment) and all subsequent years shall be provided through
respondent’s purchase of an annuity, which annuity shall make payments directly to petitioner,
Patrick D. McAleese, only so long as Patrick D. McAleese is alive at the time a particular
payment is due. At the Secretary’s sole discretion, the periodic payments may be provided to
petitioner in monthly, quarterly, annual or other installments. The “annual amounts” set forth in
the chart at Tab A describe only the total yearly sum to be paid to petitioner and do not require
that the payment be made in one annual installment.
1. Growth Rate
Respondent proffers that a four percent (4%) growth rate should be applied to all non-
medical life care items, and a five percent (5%) growth rate should be applied to all medical life
3
In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life
insurance companies.
4
The Life Insurance Company must have a minimum of $250,000,000.00 capital and surplus, exclusive of
any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings
from two of the following rating organizations:
a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;
b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;
c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or
AAA;
d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA,
AA+, or AAA.
-3-
care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid through annuity
payments should grow as follows: four percent (4%) compounded annually from the date of
judgment for non-medical items, and five percent (5%) compounded annually from the date of
judgment for medical items. Petitioner agrees.
2. Life-contingent annuity
Petitioner will continue to receive the annuity payments from the Life Insurance
Company only so long as he, Patrick D. McAleese, 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 Patrick D. McAleese’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, Patrick D. McAleese: $839,282.93
B. An amount sufficient to purchase the annuity contract described
above in section II.B.
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
5
Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case consistent
with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System
of Records, No. 09-15-0056.
-4-
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
/s/ Claudia B. Gangi
CLAUDIA B. GANGI
Senior Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 616-4138
Dated: July 25, 2018
-5-
Appendix A: Items of Compensation for Patrick D. McAleese Page 1 of 4
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-7 Year 8 Years 9-10 Year 11 Years 12-14 Year 15 Years 16-20
2018 2019-2024 2025 2026-2027 2028 2029-2031 2032 2033-2037
BCBS Premium 5% M 2,712.00 2,712.00 2,712.00 2,712.00 2,712.00 2,712.00
BCBS MOP 5% 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00
Medigap F 5% M 1,776.00 1,776.00
Medicare Part D 5% M 856.92 856.92
Primary Care 5% *
Neurologist 5% *
Physiatry 4% *
Orthopedist 5% *
Psychiatry 5% *
EMG 5% *
MRI 5% *
Lab Testing 5% *
Gym Membership 4% 578.88 479.88 479.88 479.88 479.88 479.88 479.88 479.88
PT Eval 4% *
PT 4% *
Psycho-therapy 4% *
Reacher 4% 25.15 5.03 5.03 5.03 5.03 5.03 5.03 5.03
Raised Toilet Seat 4% 80.02 16.00 16.00 16.00 16.00 16.00 16.00 16.00
Cane 4% 40.48 8.10 8.10 8.10 8.10 8.10 8.10 8.10
Hand Held Shower 4% 37.58 7.52 7.52 7.52 7.52 7.52 7.52 7.52
Shower Chair 4% 206.80 41.36 41.36 41.36 41.36 41.36 41.36 41.36
Walker 4% 99.29 19.86 19.86 19.86 19.86 19.86 19.86 19.86
Lift Chair 4% * 899.00 899.00
Scooter 4% 1,019.00 1,019.00 1,019.00 145.57
Scooter Batteries 4% 51.00 51.00 51.00 51.00 51.00 51.00 51.00 51.00
Scooter Maint 4% 87.34 87.34 87.34 87.34 87.34 87.34 87.34 87.34
Scooter Lift 4% 1,899.00 1,899.00
Orthotics 4% *
Compression Stockings 4% 55.98 55.98 55.98 55.98 55.98 55.98 55.98 55.98
Lifeline 4% 359.40 359.40 359.40 359.40 359.40 359.40 359.40 359.40
Baclofen 5% *
Appendix A: Items of Compensation for Patrick D. McAleese Page 2 of 4
Lump Sum
Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-7 Year 8 Years 9-10 Year 11 Years 12-14 Year 15 Years 16-20
2018 2019-2024 2025 2026-2027 2028 2029-2031 2032 2033-2037
Fluoxetine 5% *
Ranitidine 5% *
Home Health Care 4% M 6,224.40 6,224.40 6,224.40 6,224.40 6,224.40 6,224.40 10,374.00 10,374.00
Lost Future Earnings 555,698.46
Pain and Suffering 250,000.00
Past Unreimbursable Expenses 16,209.15
Annual Totals 839,282.93 13,067.87 14,086.87 13,067.87 15,865.87 13,067.87 15,157.39 14,283.96
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 ($17,375.32), lost earnings ($555,698.46), pain and suffering ($250,000.00), and past unreimbursable
expenses ($16,209.15): $839,282.93.
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.
Appendix A: Items of Compensation for Patrick D. McAleese Page 3 of 4
Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 21 Years 22-29 Years 30-Life
2038 2039-2046 2047-Life
BCBS Premium 5% M
BCBS MOP 5%
Medigap F 5% M 1,776.00 1,776.00 1,776.00
Medicare Part D 5% M 856.92 856.92 856.92
Primary Care 5% *
Neurologist 5% *
Physiatry 4% *
Orthopedist 5% *
Psychiatry 5% *
EMG 5% *
MRI 5% *
Lab Testing 5% *
Gym Membership 4% 479.88 479.88
PT Eval 4% *
PT 4% *
Psycho-therapy 4% *
Reacher 4% 5.03 5.03 5.03
Raised Toilet Seat 4% 16.00 16.00 16.00
Cane 4% 8.10 8.10 8.10
Hand Held Shower 4% 7.52 7.52 7.52
Shower Chair 4% 41.36 41.36 41.36
Walker 4% 19.86 19.86 19.86
Lift Chair 4% * 649.00 64.90 64.90
Scooter 4% 145.57 145.57 145.57
Scooter Batteries 4% 51.00 51.00 51.00
Scooter Maint 4% 87.34 87.34 87.34
Scooter Lift 4% 1,899.00 189.90 189.90
Orthotics 4% *
Compression Stockings 4% 55.98 55.98 55.98
Lifeline 4% 359.40 359.40 359.40
Baclofen 5% *
Appendix A: Items of Compensation for Patrick D. McAleese Page 4 of 4
Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 21 Years 22-29 Years 30-Life
2038 2039-2046 2047-Life
Fluoxetine 5% *
Ranitidine 5% *
Home Health Care 4% M 10,374.00 10,374.00 14,523.60
Lost Future Earnings
Pain and Suffering
Past Unreimbursable Expenses
Annual Totals 16,831.96 14,538.76 18,208.48
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 ($17,375.32), lost earnings ($555,698.46), pain and suffering ($250,000.00), and past unreimbursable
expenses ($16,209.15): $839,282.93.
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.