The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0268V
UNPUBLISHED
GAIL WARR, Chief Special Master Corcoran
Petitioner, Filed: January 13, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
Respondent.
Simina Vourlis, Law Offices of Simina Vourlis, Columbus, OH, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On February 21, 2018, Gail Warr 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 she suffered Guillain-Barre Syndrome (“GBS”) as
a result of an influenza (“flu”) vaccine received on October 1, 2015. Petition at 1. The
case was assigned to the Special Processing Unit of the Office of Special Masters.
On January 7, 2020, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for GBS. On January 13, 2020, Respondent filed a Proffer on award
of compensation (“Proffer”) indicating Petitioner should be awarded all items of
compensation set forth in the life care plan and illustrated by the chart attached at Tab
A. Proffer at 1-2. In the Proffer, Respondent represented that Petitioner agrees with
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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.
2National 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).
the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled
to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner the
following compensation:
1. A lump sum payment of $619,492.28, representing compensation for life
care expenses expected to be incurred during the first year after judgment
($211,141.74), lost earnings ($147,778.22), pain and suffering
($250,000.00), and past unreimbursable expenses ($10,572.32), in the form
of a check payable to Petitioner, Gail Warr.
2. A lump sum payment of $40,518.02, representing compensation for
satisfaction of an Ohio Department of Medicaid lien, payable jointly to
Petitioner and the Treasurer, State of Ohio, and mailed to:
Ohio Tort Recovery Unit
350 Worthington Rd., Suite G
Westerville, Ohio 43082
Case Number: 1093122
3. An amount sufficient to purchase an annuity contract, subject to the
conditions described in the Proffer, that will provide payments for the life
care items contained in the life care plan, as illustrated by the chart at Tab
A, beginning with compensation for Year Two (on the first anniversary of
the date of the judgment) and all subsequent years, paid to the life
insurance company from which the annuity will be purchased. To clarify,
the annuity will cover all items of compensation set forth in the life care
plan and illustrated in the chart attached to the Proffer at Tab A, except
those items of compensation for which payment will be made under #1 and
#2 above.
This amount represents compensation for all damages that would be available under
§ 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
Case 1:18-vv-00268-UNJ Document 79 Filed 01/13/20 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
GAIL WARR,
Petitioner,
v. No. 18-268V ECF
Chief Special Master Corcoran
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
On January 3, 2020, respondent filed a Rule 4(c) Report conceding that entitlement to
compensation was appropriate under the terms of the Vaccine Act. On January 7, 2020, Chief
Special Master Corcoran issued a Ruling on Entitlement, finding that Gail Warr (“petitioner”)
was entitled to vaccine compensation for her Guillain-Barré Syndrome. Respondent now
proffers the following regarding the amount of compensation to be awarded.
I. Items of Compensation
A. Life Care Items
The respondent engaged life care planner, Shelly Kinney, MSN, RN, CNLCP, CCM, and
petitioner engaged Shanna Huber, RN, BSN, MSN/Ed, CCM, CLCP, CNLCP, to provide an
estimation of petitioner’s future vaccine-injury related needs. 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 Gail Warr, attached hereto as Tab A. 1
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.
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Case 1:18-vv-00268-UNJ Document 79 Filed 01/13/20 Page 2 of 5
Respondent proffers that petitioner 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.
B. Lost Earnings
The parties agree that based upon the evidence of record, petitioner has suffered past loss
of earnings and will suffer a loss of earnings in the future. Therefore, respondent proffers that
petitioner 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 petitioner’s lost
earnings is $147,778.22. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner 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 her expenditure of past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $10,572.32. Petitioner agrees.
E. Medicaid Lien
Respondent proffers that petitioner should be awarded funds to satisfy an Ohio
Department of Medicaid lien in the amount of $40,518.02, which represents full satisfaction of
any right of subrogation, assignment, claim, lien, or cause of action the Ohio Department of
Medicaid may have against any individual as a result of any Medicaid payments the Ohio
Department of Medicaid has made to or on behalf of petitioner from the date of her eligibility for
benefits through the date of judgment in this case as a result of her vaccine-related injury
suffered on or about September 29, 2015, under Title XIX of the Social Security Act.
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Case 1:18-vv-00268-UNJ Document 79 Filed 01/13/20 Page 3 of 5
II. Form of the Award
The parties recommend that the compensation provided to petitioner 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 $619,492.28, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($211,141.74), lost earnings
($147,778.22), pain and suffering ($250,000.00), and past unreimbursable expenses
($10,572.32), in the form of a check payable to petitioner, Gail Warr.
B. A lump sum payment of $40,518.02, representing compensation for satisfaction of an
Ohio Department of Medicaid lien, payable jointly to petitioner and the Treasurer, State of Ohio,
and mailed to:
Ohio Tort Recovery Unit
350 Worthington Rd. Suite G
Westerville, Ohio 43082
Case Number: 1093122
Petitioner agrees to endorse this payment to the Treasurer, State of Ohio.
C. 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
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.
3
In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life
insurance companies.
4
The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of
any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings
from two of the following rating organizations:
a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;
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Case 1:18-vv-00268-UNJ Document 79 Filed 01/13/20 Page 4 of 5
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,
Gail Warr, only so long as Gail Warr 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
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 she, Gail Warr, is alive at the time that a particular payment is due.
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.
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.
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Case 1:18-vv-00268-UNJ Document 79 Filed 01/13/20 Page 5 of 5
Written notice shall be provided to the Secretary of Health and Human Services and the Life
Insurance Company within twenty (20) days of Gail Warr’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, Gail Warr: $619,492.28
B. Medicaid lien: $ 40,518.02
C. An amount sufficient to purchase the annuity contract described
above in section II.C.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
/s/Darryl R. Wishard
DARRYL R. WISHARD
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) 616-4357
Dated: January 13, 2020
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Case 1:18-vv-00268-UNJ Document 79-1 Filed 01/13/20 Page 1 of 1
Appendix A: Items of Compensation for Gail Warr Page 1 of 1
Lump Sum
Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-5 Year 6 Year 7 Years 8-Life
2020 2021-2024 2025 2026 2027-Life
Medicare Part B Premium 5% M 1,735.20 1,735.20 1,735.20 1,735.20 1,735.20
Medicare Part B Deductible 5% *
Medicare Adv 5% M 4,152.00 4,152.00 4,152.00 4,152.00 4,152.00
PT Eval 4% *
PT 4% *
OT Eval 4% *
OT 4% *
Therapeutic Counseling 4% *
Home Health Aide 4% M 52,560.00 52,560.00 52,560.00 52,560.00 105,120.00
Case Manager 4% M 8,100.00 2,700.00 2,700.00 2,700.00 2,700.00
PCP 5% *
Orthopedic Surgeon 5% *
Neurology 5% *
Urology 5% *
Home Mods 4% 105,090.00
Van Conversion 4% 30,000.00 4,285.71 4,285.71 4,285.71 4,285.71
Drivers Ed 4% 2,530.00
Oxybutynin 5% * 24.00 24.00 24.00 24.00 24.00
Pads 4% 740.95 740.95 740.95 740.95 740.95
Depends 4% 226.30 226.30 226.30 226.30 226.30
Transfer Board 4% *
Compression Socks 4% 64.50 64.50 64.50 64.50 64.50
Leg Weights 4% 20.72
Wii 4% 699.00 699.00
Power Lift Chair 4% * 1,316.00 263.20 263.20 263.20 263.20
Pellet Grill 4% 499.00 99.80 99.80 99.80 99.80
Power Assist WC 4% *
Bariatric Electric WC 4% *
Roho Cushion 4% *
Hoyer Lift 4% *
Slings 4% *
Bedside Commode 4% 100.00 20.00 20.00 20.00 20.00
Walker 4% 40.00 8.00 8.00 8.00 8.00
Adj Mattress and Base 4% 3,249.00 324.90 324.90 324.90 324.90
Reacher 4% 15.79 15.79 15.79 15.79 15.79
Lost Future Earnings 147,778.22
Pain and Suffering 250,000.00
Past Unreimbursable Expenses 10,572.32
Medicaid Lien 40,518.02
Annual Totals 660,010.30 67,220.35 67,940.07 67,220.35 119,780.35
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 ($211,141.74), lost earnings ($147,778.22), pain and suffering ($250,000.00), and past unreimbursable
expenses ($10,572.32): $619,492.28.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and Treasurer, State of Ohio, as reimbursement of the state's Medicaid lien: $40,518.02.
Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the date of judgment.
Annual amounts shall increase at the rates indicated above in column G.R., compounded annually from the date of judgment.
Items denoted with an asterisk (*) covered by health insurance and/or Medicare.
Items denoted with an "M" payable in twelve monthly installments totaling the annual amount indicated.