In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
GARY ABDULLA, *
* No. 13-853V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: February 13, 2015
*
SECRETARY OF HEALTH * Damages; decision based on proffer;
AND HUMAN SERVICES, * influenza (“flu”) vaccine;
* shoulder bursitis; rotator cuff tear.
Respondent. *
******************** *
Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for
petitioner;
Claudia B. Gangi, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION AWARDING DAMAGES1
On October 29, 2013, Gary Adbulla filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. §300aa—10 through 34, alleging that he
suffered bursitis in his left shoulder and a rotator cuff tear related to his receipt of
the influenza (“flu”) vaccine on October 12, 2011. On February 14, 2014, the
undersigned determined that petitioner is entitled to compensation under the
Vaccine Act.
On February 12, 2015, respondent filed a Proffer on Award of
Compensation, to which petitioner agrees. Based upon the record as a whole, the
special master finds the proffer reasonable and that petitioner is entitled to an
award as stated in the Proffer. Pursuant to the attached Proffer, the court awards
petitioner:
1
The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002), requires that the
Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion
proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any
redactions ordered by the special master will appear in the document posted on the website.
A. A lump sum payment of $177,250.43, representing life care expenses
for Year 1 ($9,021.00), compensation for lost earnings ($13,129.58),
past un-reimbursed expenses ($5,099.85), and pain and suffering
($150,000.00), in the form of a check payable to petitioner, Gary
Abdulla.
B. An amount sufficient to purchase the annuity contract described in
section II.B. of the attached Proffer (“Appendix A”).
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.
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF THE SPECIAL MASTERS
___________________________________
)
GARY ABDULLA, )
)
Petitioner, )
) No. 12-853V
v. ) Special Master Moran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES )
)
Respondent, )
___________________________________ )
RESPONDENT'S PROFFER ON DAMAGES
Respondent submits the following recommendations regarding items of compensation to
be awarded to petitioner under the Vaccine Act.
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLCP, and
petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of Gary
Abdulla’s future vaccine-injury related needs. All items identified in the agreed life care plan
dated December 3, 2014, are supported by the evidence and are illustrated by the chart entitled
Tab A: Summary of Life Care Items. 1 Respondent proffers Gary Abdulla (“petitioner”) should
be awarded all items of compensation that are set forth in the agreed life care plan and illustrated
by the chart attached as Tab A. Petitioner agrees. Respondent further proffers that the
appropriate growth rate for life care items of compensation should be four percent (4.0%) for
1
The chart at Tab A illustrates the annual benefits as contained in 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.
Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 2 of 5
non-medical items and six percent (6.0%) for medical items, compounded annually from the date
of judgment, as set forth in Tab B: Annuity Funding Portfolio. Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, Gary Abdulla has suffered a
past loss of earnings as a result of her vaccine-related injury. Therefore, respondent proffers that
the Court should award Gary Abdulla a lump sum of $13,129.58 for his lost earnings as provided
under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $150,000.00 in actual and
projected pain and suffering. This amount reflects that the award for projected pain and
suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner
agrees.
D. Past Unreimbursed Expenses
Evidence supplied by petitioner documents his expenditure of past un-reimbursable
expenses related to his vaccine-related injury. Respondent proffers that the petitioner is entitled
to past un-reimbursed expenses in the amount of $5,099.85. Petitioner agrees.
E. Medicaid Lien
Petitioner represents that there are no outstanding Medicaid liens related to his vaccine-
related injury.
F. Attorney’s Fees and Costs
This proffer does not address final attorneys’ fees and costs. Petitioner is entitled to
reasonable attorneys’ fees and costs, to be determined at a later date upon petitioner filing
substantiating documentation.
2
Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 3 of 5
II. Form of the Award
The parties recommend that the compensation provided to petitioner for his future
medical care needs should be made through a combination of a one-time cash payment and
future annuity payments as described below, and request that the special master’s decision and
the Court’s judgment reflect the following items of compensation. 2
Respondent proffers and petitioner agrees that an award of compensation include the
following elements:
A. A lump sum payment of $177,250.43, representing life care expenses for Year 1
($9,021.00), compensation for lost earnings ($13,129.58), past un-reimbursed expenses
($5,099.85), and pain and suffering ($150,000.00), in the form of a check payable to petitioner.
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, and paid to the life insurance company 4 from
2
Should petitioner die prior to entry of judgment, respondent would oppose any award for
future medical expenses and future pain and suffering, and the parties reserve the right to move
the Court for appropriate relief.
3
In respondent’s discretion, respondent may purchase one or more annuity contracts from one
or more life insurance companies.
4
The Life Insurance Company must have a minimum of $250,000,000 capital and surplus,
exclusive of any mandatory security valuation reserve. The Life Insurance Company must have
one of the following ratings from two of the following rating organizations:
a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;
b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;
c. Standard and Poor’s Corporation Insurer Claims-Paying Ability Rating: AA-,
AA, AA+, or AAA;
d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability
Rating: AA-, AA, AA+, or AAA.
3
Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 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 payments shall be provided through
respondent’s purchase of an annuity, which annuity will make payments directly to the petitioner
only so long as he is alive at the time a particular payment is due. The “annual amounts” set
forth in Tab B describe the total year sum to be paid and do not require that the payment be made
in one single payment.
The parties agree that petitioner is a competent adult and that no guardians/ conservators
of his estate will be required.
1. Growth Rates
Respondent proffers that a four percent (4.0%) growth rate should be applied to all non-
medical items, and a six percent (6.0%) growth rate should be applied to all medical items. The
benefits illustrated in the chart at Tab B that are to be paid through annuity payments should
grow as follows: four percent (4.0%) for all non-medical items, and six percent (6.0%) for all
medical items, compounded annually from the date of judgment. Petitioner agrees.
2. Life-contingent Annuity
Petitioner will continue to receive the annuity payments for future medical care from the
Life Insurance Company only so long as he is alive at the time that a particular payment is due.
Written notice to the Secretary of Health and Human Services and the Life Insurance Company
shall be made within twenty (20) days of petitioner’s death.
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to Petitioner: $177,250.43
5
Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case
consistent with the Privacy Act and the routine uses described in the National Vaccine Injury
Compensation Program System of Records, No.09-15-0056.
4
Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 5 of 5
B. An amount sufficient to purchase the annuity contract described above in
section II. B.
Respectfully submitted,
JOYCE R. BRANDA
Acting Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
GLENN A. MACLEOD
Senior Trial Counsel
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 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel.: (202) 616-4138
Dated: February 12, 2015
5
Case 1:13-vv-00853-UNJ Document 46-1 Filed 02/12/15 Page 1 of 2
PET: Gary Abdulla TAB A
D.O.B. 10/26/1963
DATE: 02/10/15
TIME: 08:12 AM
SUMMARY OF LIFE CARE ITEMS - AGREED LIFE CARE PLAN dated 12/03/2014
ITEM OF CARE Insurance Medical Ancillary Medical Medications Home Transportation TOTALS TOTALS TOTALS OF
Care Services Equipment Services of Items of Items 4.0% & 6.0% ITEMS
with a 6.0% with a 4.0% & APPLYING
Growth Rate Growth Rate THE GROWTH
GROWTH RATE 6.0% 6.0% 6.0% 6.0% 6.0% 4.0% 4.0% RATE
AGE YEAR
52 2015 1,000.00 160.00 360.00 261.78 318.27 6,158.95 761.73 2,100.05 6,920.68 9,021
53 2016 1,000.00 160.00 480.00 14.57 318.27 6,064.90 271.71 1,972.84 6,336.61 8,681
54 2017 1,000.00 160.00 462.00 14.57 318.27 6,064.90 271.71 1,954.84 6,336.61 9,050
55 2018 1,000.00 160.00 462.00 14.57 318.27 6,064.90 271.71 1,954.84 6,336.61 9,456
56 2019 1,000.00 160.00 462.00 14.57 318.27 6,064.90 271.71 1,954.84 6,336.61 9,881
57 2020 1,000.00 90.00 462.00 14.57 318.27 6,064.90 246.23 1,884.84 6,311.12 10,201
58 2021 1,000.00 90.00 462.00 14.57 318.27 6,064.90 246.23 1,884.84 6,311.12 10,659
59 2022 1,000.00 90.00 462.00 14.57 318.27 6,064.90 246.23 1,884.84 6,311.12 11,139
60 2023 1,000.00 90.00 462.00 14.57 318.27 6,064.90 246.23 1,884.84 6,311.12 11,641
61 2024 1,000.00 90.00 462.00 14.57 318.27 6,064.90 246.23 1,884.84 6,311.12 12,167
62 2025 0.00 90.00 462.00 14.57 318.27 6,064.90 246.23 884.84 6,311.12 10,927
63 2026 0.00 90.00 462.00 14.57 318.27 6,064.90 246.23 884.84 6,311.12 11,395
64 2027 0.00 90.00 462.00 14.57 318.27 6,064.90 246.23 884.84 6,311.12 11,885
65 2028 0.00 119.00 380.40 103.57 318.27 8,316.90 246.23 921.24 8,563.12 16,223
66 2029 0.00 119.00 380.40 237.07 318.27 8,316.90 246.23 1,054.74 8,563.12 17,213
67 2030 0.00 119.00 380.40 27.28 318.27 8,316.90 246.23 844.95 8,563.12 17,447
68 2031 0.00 119.00 380.40 27.28 318.27 8,316.90 246.23 844.95 8,563.12 18,185
69 2032 0.00 119.00 380.40 27.28 318.27 8,316.90 246.23 844.95 8,563.12 18,955
70 2033 0.00 119.00 380.40 27.28 318.27 8,316.90 246.23 844.95 8,563.12 19,759
71 2034 0.00 119.00 380.40 27.28 318.27 6,816.90 246.23 844.95 7,063.12 17,437
72 2035 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 17,442
73 2036 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 18,194
74 2037 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 18,979
75 2038 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 19,799
76 2039 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 20,656
77 2040 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 21,551
78 2041 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 22,485
10,000 3,186 11,248 1,105 8,593 181,190 7,073 34,132 188,263 400,430
4.50% 1.43% 5.06% 0.50% 3.86% 81.47% 3.18% 100.00%
This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990 Abdulla AGREED LC Plan 12 03 14 02 10 15 REV3
PAGE 1
Case 1:13-vv-00853-UNJ Document 46-1 Filed 02/12/15 Page 2 of 2 TAB B
ANNUITY FUNDING PORTFOLIO
AGREED LIFE CARE PLAN dated 12/03/2014
4.0 % & 6.0% GROWTH RATES
DATE: 02/10/15
TIME: 08:12 AM
Case No: 13-853V
PET: Gary Abdulla
D.O.B. 10/26/1963 Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8 Column 9
Funding Item TOTAL ANNUAL CASH & ANNUITY ANNUITY ANNUITY ANNUITY ANNUAL CUMULATIVE
Starting Amount MEDICAL STRUCTURED ANNUITY 896 1,221 6,564 11,195 SAFETY SAFETY
Inflation Factor CARE NEEDS SETTLEMENT LUMP 6.00% 6.00% 4.00% 4.00% MARGIN MARGIN
Beginning Year 2015 BENEFITS SUMS 2016 2016 2016 2028 2015 2015
Ending Year 2041 LIFE 2027 2027 LIFE 2041 2041
TOTAL S/S Cash & Deferred Deferred Deferred Deferred Safety Cum.Safety
AGE YEAR NEEDS TOTAL Lump Sums Annuity Annuity Annuity Annuity Margin Margin
52 2015 9,021 9,021 9,021 0 0
53 2016 8,681 8,681 896 1,221 6,564 0 0
54 2017 9,050 9,071 950 1,294 6,827 20 20
55 2018 9,456 9,478 1,007 1,372 7,100 22 43
56 2019 9,881 9,905 1,067 1,454 7,384 24 67
57 2020 10,201 10,352 1,131 1,541 7,679 151 218
58 2021 10,659 10,819 1,199 1,634 7,986 160 377
59 2022 11,139 11,309 1,271 1,732 8,306 169 547
60 2023 11,641 11,821 1,347 1,836 8,638 180 727
61 2024 12,167 12,357 1,428 1,946 8,983 190 917
62 2025 10,927 12,919 1,514 2,063 9,343 1,993 2,910
63 2026 11,395 13,508 1,605 2,187 9,716 2,112 5,022
64 2027 11,885 14,124 1,701 2,318 10,105 2,239 7,261
65 2028 16,223 12,998 1,803 11,195 -3,225 4,035
66 2029 17,213 13,554 1,911 11,643 -3,659 376
67 2030 17,447 28,538 14,404 2,026 12,109 11,092 11,468
68 2031 18,185 14,740 2,147 12,593 -3,445 8,023
69 2032 18,955 15,373 2,276 13,097 -3,583 4,440
70 2033 19,759 16,033 2,413 13,620 -3,726 714
71 2034 17,437 16,723 2,557 14,165 -715 0
72 2035 17,442 17,443 2,711 14,732 1 0
73 2036 18,194 18,195 2,874 15,321 1 1
74 2037 18,979 18,980 3,046 15,934 1 2
75 2038 19,799 19,800 3,229 16,571 1 2
76 2039 20,656 20,657 3,422 17,234 1 3
77 2040 21,551 21,551 3,628 17,924 1 4
78 2041 22,485 22,486 3,846 18,640 1 5
ITEMIZED TOTALS 400,430 400,435 23,425 53,004 20,598 98,629 204,778 5 5
Abdulla AGREED LC Plan 12 03 14 02 10 15 REV3
This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990
PAGE 2