Jenney v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-338V
Filed: April 13, 2015
Not for Publication

*************************************
SAMANTHA JENNEY, *
*
Petitioner, *
* Damages decision based on proffer;
v. * tetanus-diphtheria-acellular
* pertussis (Tdap) vaccine; shoulder
SECRETARY OF HEALTH * injury related to vaccine
AND HUMAN SERVICES, * administration (SIRVA)
*
Respondent. *
*
*************************************
Ronald C. Homer, Boston, MA, for petitioner.
Claudia B. Gangi, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING DAMAGES1

On April 23, 2014, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2006), alleging that she suffered a shoulder injury as a
result of the tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination she received on July 21,
2011. On July 18, 2014, respondent filed her Rule 4(c) Report, conceding that petitioner
suffered from a shoulder injury related to vaccine administration (“SIRVA”) and recommending
compensation.

1
Because this decision contains a reasoned explanation for the special master's action in this case, the
special master intends to post this decision on the United States Court of Federal Claims's website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the
public unless they contain trade secrets or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted
invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact
such information prior to the document=s disclosure. If the special master, upon review, agrees that the
identified material fits within the banned categories listed above, the special master shall redact such
material from public access.
1
 On April 10, 2015, respondent filed Respondent’s Proffer on Award of Compensation.
The undersigned finds the terms of the proffer to be reasonable. Based on the record as a whole,
the undersigned finds that petitioner is entitled to the award as stated in the proffer. Pursuant to
the terms stated in the attached proffer, the court awards:

a. a lump sum payment of $155,963.04, representing life care expenses for Year 1
($15,299.00), past unreimbursable expenses ($664.04), and pain and suffering
($140,000.00). The award shall be in the form of a check for $155,963.04 payable to
petitioner;

b. a lump sum payment of $1,076.77, representing compensation for satisfaction of the
Boston Medical Center HealthNet Plan lien. The award shall be in the form of a
check for $1,076.77 payable jointly to petitioner and

Boston Medical Center HealthNet Plan
Two Copley Place, Suite 600
Boston, MA 02116
ATTN: Kelvin Britto, OPL/TPL Specialist

Petitioner agrees to endorse this payment to the Boston Medical Center HealthNet
Plan;

c. a lump sum payment of $8,516.49, representing compensation for satisfaction of the
Neighborhood Health Plan lien. The award shall be in the form of a check for
$8,516.49 payable jointly to petitioner and

Neighborhood Health Plan
253 Summer Street
Boston, MA 02210
ATTN: Angela Layne

Petitioner agrees to endorse this payment to Neighborhood Health Plan; and

d. an amount sufficient to purchase the annuity contract described in paragraph II.D of
the attached proffer. The award shall be in the form of a check payable to the life
insurance company from which the annuity will be purchased.

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.2

2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
2
IT IS SO ORDERED.

Dated: April 13, 2015 /s/ Laura D. Millman
Laura D. Millman
Special Master

3
 IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS

_________________________________________
)
SAMANTHA JENNEY, )
)
Petitioner, )
) No. 14-338V
v. ) Special Master Millman
) 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 Samantha

Jenney’s future vaccine-injury related needs. All items identified in the agreed life care plan

dated March 16, 2013, are supported by the evidence and are illustrated by the chart entitled Tab

A: Summary of Life Care Items. 1 Respondent proffers Samantha Jenney (“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

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.
1
appropriate growth rate for life care items of compensation should be four percent (4.0%) for

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, Samantha Jenney will be able to

engage in gainful employment. Therefore, respondent proffers that Samantha Jenney is not

entitled to receive future lost earnings compensation provided for 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 $140,000.00 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 her expenditure of past un-reimbursable

expenses related to her vaccine-related injury. Respondent proffers that the petitioner is entitled

to past un-reimbursed expenses in the amount of $664.04. Petitioner agrees.

E. Medicaid Lien

Respondent proffers that Samantha Jenney should be awarded funds to satisfy the

Boston Medical Center HealthNet Plan lien in the amount of $1,076.77, and the Neighborhood

Health Plan lien in the amount of $8,516.49, which represents full satisfaction of any right of

subrogation, assignment, claim, lien, or cause of action the Boston Medical Center HealthNet

2
 Plan and/or the Neighborhood Health Plan may have against any individual as a result of any

Medicaid payments the Boston Medical Center HealthNet Plan and/or the Neighborhood Health

Plan has made to or on behalf of Samantha Jenney 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 July 21, 2011, under Title XIX of the Social Security Act.

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.

II. Form of the Award

The parties recommend that the compensation provided to petitioner for her 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 $155,963.04, representing life care expenses for Year 1

($15,299.00), past un-reimbursed expenses ($664.04), and pain and suffering ($140,000.00), in

the form of a check payable to petitioner.

2
Should petitioner die prior to entry of judgment, respondent would oppose any award for
future medical expenses, future lost earnings, and future pain and suffering, and the parties
reserve the right to move the Court for appropriate relief.

3
 B. A lump sum payment of $1,076.77, representing compensation for satisfaction of

the Boston Medical Center HealthNet Plan lien, payable jointly to petitioner and

Boston Medical Center HealthNet Plan
Two Copley Place, Suite 600
Boston, MA 02116
ATTN: Kelvin Britto, OPL/TPL Specialist

Petitioner agrees to endorse this payment to the Boston Medical Center HealthNet Plan.

C. A lump sum payment of $8,516.49, representing compensation for satisfaction of

the Neighborhood Health Plan lien, payable jointly to petitioner and

Neighborhood Health Plan
253 Summer Street
Boston, MA 02210
ATTN: Angela Layne

Petitioner agrees to endorse this payment to the Neighborhood Health Plan.

D. 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

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.
4
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 she 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.

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 she 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: $155,963.04

B. Lump Sum paid jointly to petitioner and Boston Medical Center HealthNet

Plan: $1,076.77

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.
5
 C. Lump Sum paid jointly to petitioner and Neighborhood Health Plan:

$8,516.49

D. An amount sufficient to purchase the annuity contract described above in

section II. D.

Respectfully submitted,

BENJAMIN C. MIZER
Acting Assistant Attorney General

RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division

VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division

MICHAEL P. MILMOE
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: April 10, 2015

6
 TAB A

Pet. Samantha Jenney
D.O.B. 05/24/1969

DATE: 03/20/15
TIME: 11:20 PM

SUMMARY OF LIFE CARE ITEMS - AGREED LIFE CARE PLAN dated March 16, 2015

ITEM OF CARE Insurance Medical Ancillary Equipment Medications Home Transportation TOTALS TOTALS TOTALS OF
Care Services Services of Items of Items 4.0 and 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% RATES

AGE YEAR

46 2015 7,113.08 523.40 785.00 768.08 540.00 4,007.49 480.87 9,730 4,488 14,981
47 2016 7,113.08 348.40 460.00 202.39 540.00 3,878.50 68.31 8,664 3,947 14,004
48 2017 7,113.08 348.40 460.00 202.39 540.00 3,878.50 68.31 8,664 3,947 14,758
49 2018 7,113.08 348.40 460.00 202.39 540.00 3,878.50 68.31 8,664 3,947 15,555
50 2019 10,463.08 0.00 390.00 199.25 0.00 3,878.50 76.33 11,052 3,955 19,602
51 2020 7,113.08 104.80 70.00 202.39 540.00 3,878.50 65.18 8,030 3,944 16,381
52 2021 7,113.08 104.80 70.00 202.39 540.00 3,878.50 65.18 8,030 3,944 17,264
53 2022 7,113.08 104.80 70.00 202.39 540.00 3,878.50 65.18 8,030 3,944 18,196
54 2023 7,113.08 104.80 70.00 202.39 540.00 3,878.50 65.18 8,030 3,944 19,180
55 2024 7,113.08 414.80 255.00 202.39 540.00 3,878.50 97.71 8,525 3,976 21,153
56 2025 0.00 428.30 434.80 214.98 928.56 3,878.50 65.18 2,007 3,944 9,880
57 2026 0.00 428.30 434.80 214.98 928.56 3,878.50 65.18 2,007 3,944 10,352
58 2027 0.00 428.30 434.80 214.98 928.56 3,878.50 65.18 2,007 3,944 10,847
59 2028 0.00 428.30 434.80 214.98 928.56 3,878.50 65.18 2,007 3,944 11,366
60 2029 0.00 428.30 434.80 214.98 928.56 3,878.50 65.18 2,007 3,944 11,911
61 2030 0.00 428.30 434.80 214.98 928.56 3,878.50 65.18 2,007 3,944 12,484
62 2031 0.00 428.30 434.80 214.98 928.56 3,878.50 65.18 2,007 3,944 13,085
63 2032 0.00 428.30 434.80 214.98 928.56 3,878.50 65.18 2,007 3,944 13,717
64 2033 0.00 428.30 434.80 214.98 928.56 3,878.50 65.18 2,007 3,944 14,380

PAGE 1
 TAB A

Pet. Samantha Jenney
D.O.B. 05/24/1969

DATE: 03/20/15
TIME: 11:20 PM

SUMMARY OF LIFE CARE ITEMS - AGREED LIFE CARE PLAN dated March 16, 2015

ITEM OF CARE Insurance Medical Ancillary Equipment Medications Home Transportation TOTALS TOTALS TOTALS OF
Care Services Services of Items of Items 4.0 and 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% RATES

AGE YEAR

65 2034 920.16 85.66 290.00 307.01 0.00 3,761.50 49.09 1,603 3,811 13,490
66 2035 920.16 85.66 290.00 163.13 0.00 3,761.50 49.09 1,459 3,811 13,643
67 2036 920.16 85.66 290.00 163.13 0.00 3,761.50 49.09 1,459 3,811 14,288
68 2037 920.16 85.66 290.00 163.13 0.00 3,761.50 49.09 1,459 3,811 14,965
69 2038 920.16 85.66 290.00 163.13 0.00 3,761.50 49.09 1,459 3,811 15,675
70 2039 920.16 85.66 290.00 163.13 0.00 3,761.50 49.09 1,459 3,811 16,420
71 2040 920.16 85.66 290.00 163.13 0.00 3,549.00 49.09 1,459 3,598 16,613
72 2041 920.16 85.66 290.00 163.13 0.00 3,549.00 49.09 1,459 3,598 17,410
73 2042 920.16 85.66 290.00 163.13 0.00 3,549.00 49.09 1,459 3,598 18,247
74 2043 920.16 85.66 290.00 163.13 0.00 3,549.00 49.09 1,459 3,598 19,126
75 2044 920.16 85.66 290.00 163.13 0.00 3,549.00 49.09 1,459 3,598 20,049
76 2045 920.16 85.66 290.00 163.13 0.00 3,549.00 49.09 1,459 3,598 21,019
77 2046 920.16 85.66 290.00 163.13 0.00 3,549.00 49.09 1,459 3,598 22,037
78 2047 920.16 85.66 290.00 163.13 0.00 3,549.00 49.09 1,459 3,598 23,107
79 2048 920.16 85.66 290.00 163.13 0.00 3,549.00 49.09 1,459 3,598 24,231
80 2049 920.16 85.66 290.00 163.13 0.00 3,549.00 49.09 1,459 3,598 25,412
81 2050 920.16 85.66 290.00 163.13 0.00 3,549.00 49.09 1,459 3,598 26,653

90,124 7,714 11,933 7,438 13,217 135,428 2,542 130,426 137,970 601,484

33.58% 2 87% 4.45% 2.77% 4.92% 50.46% 0.95% 100.00%

This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990 Jenney AGREED LCP 03 20 15 REV3

PAGE 2
 TAB B

ANNUITY FUNDING PORTFOLIO
AGREED LIFE CARE PLAN dated March 16, 2015

4.0 and 6.0% GROWTH RATES

DATE: 03/20/15
TIME: 11:20 PM

Pet. Samantha Jenney
D.O.B. 05/24/1969 Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8 Column 9 Column 10 Column 11

Settlement Item TOTAL ANNUAL CASH & ANNUITY ANNUITY ANNUITY ANNUITY ANNUITY ANNUITY ANNUALCUMULATIVE
Starting Amount MEDICAL STRUCTURED ANNUITY 1,640 7,999 1,040 3,891 374 328 SAFETY SAFETY
Inflation Factor CARE NEEDS SETTLEMENT LUMP 6.00% 6.00% 6.00% 4.00% 4.00% 4.00% MARGIN MARGIN
Beginning Year 2015 BENEFITS SUMS 2016 2016 2025 2016 2016 2034 2015 2015
Ending Year 2050 LIFE 2023 2033 LIFE 2033 2039 2050 2050

TOTAL S/S Cash & Deferred Deferred Deferred Deferred Deferred Deferred Safety Cum.Safety
AGE YEAR NEEDS TOTAL Lump Sums Annuity Annuity Annuity Annuity Annuity Annuity Margin Margin

46 2015 14,981 15,299 15,299 318 318
47 2016 14,004 13,904 1,640 7,999 3,891 374 -100 218
48 2017 14,758 14,653 1,738 8,479 4,047 389 -105 113
49 2018 15,555 15,443 1,843 8,988 4,209 405 -112 1
50 2019 19,602 19,601 3,323 1,953 9,527 4,377 421 -1 0
51 2020 16,381 17,158 2,070 10,099 4,552 438 777 777
52 2021 17,264 18,088 2,195 10,704 4,734 455 824 1,601
53 2022 18,196 19,070 2,326 11,347 4,923 473 873 2,474
54 2023 19,180 20,106 2,466 12,028 5,120 492 926 3,400
55 2024 21,153 17,757 9,306 2,614 5,325 512 -3,396 4
56 2025 9,880 9,881 2,771 1,040 5,538 532 1 5
57 2026 10,352 10,353 2,937 1,102 5,760 554 1 6
58 2027 10,847 10,848 3,113 1,169 5,990 576 1 7
59 2028 11,366 11,367 3,300 1,239 6,230 599 1 8
60 2029 11,911 11,913 3,498 1,313 6,479 623 1 9
61 2030 12,484 12,485 3,708 1,392 6,738 648 1 10
62 2031 13,085 13,087 3,930 1,475 7,007 674 1 11
63 2032 13,717 13,718 4,166 1,564 7,288 700 1 13
64 2033 14,380 14,382 4,416 1,658 7,579 729 2 14

PAGE 3
 TAB B

ANNUITY FUNDING PORTFOLIO
AGREED LIFE CARE PLAN dated March 16, 2015

4.0 and 6.0% GROWTH RATES

DATE: 03/20/15
TIME: 11:20 PM

Pet. Samantha Jenney
D.O.B. 05/24/1969 Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8 Column 9 Column 10 Column 11

Settlement Item TOTAL ANNUAL CASH & ANNUITY ANNUITY ANNUITY ANNUITY ANNUITY ANNUITY ANNUALCUMULATIVE
Starting Amount MEDICAL STRUCTURED ANNUITY 1,640 7,999 1,040 3,891 374 328 SAFETY SAFETY
Inflation Factor CARE NEEDS SETTLEMENT LUMP 6.00% 6.00% 6.00% 4.00% 4.00% 4.00% MARGIN MARGIN
Beginning Year 2015 BENEFITS SUMS 2016 2016 2025 2016 2016 2034 2015 2015
Ending Year 2050 LIFE 2023 2033 LIFE 2033 2039 2050 2050

TOTAL S/S Cash & Deferred Deferred Deferred Deferred Deferred Deferred Safety Cum.Safety
AGE YEAR NEEDS TOTAL Lump Sums Annuity Annuity Annuity Annuity Annuity Annuity Margin Margin

65 2034 13,490 14,251 1,359 4,681 7,882 328 761 775
66 2035 13,643 13,501 4,962 8,198 341 -142 633
67 2036 14,288 14,140 5,260 8,526 355 -148 485
68 2037 14,965 14,811 5,575 8,867 369 -154 331
69 2038 15,675 15,515 5,910 9,221 384 -160 171
70 2039 16,420 16,254 6,264 9,590 399 -166 4
71 2040 16,613 16,614 6,640 9,974 1 5
72 2041 17,410 17,411 7,039 10,373 1 7
73 2042 18,247 18,249 7,461 10,788 1 8
74 2043 19,126 19,128 7,909 11,219 2 10
75 2044 20,049 20,051 8,383 11,668 2 11
76 2045 21,019 21,021 8,886 12,135 2 13
77 2046 22,037 22,039 9,419 12,620 2 15
78 2047 23,107 23,109 9,984 13,125 2 17
79 2048 24,231 24,233 10,584 13,650 2 19
80 2049 25,412 25,414 11,219 14,196 2 22
81 2050 26,653 26,655 11,892 14,764 3 25

ITEMIZED TOTALS 601,484 601,509 29,287 182,753 79,170 11,951 286,581 9,591 2,176 25 25

This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990 Jenney AGREED LCP 03 20 15 REV3

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