In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 5, 2018
* * * * * * * * * * * * * * * * * * * UNPUBLISHED
KRISTINA GARRISON, *
* No. 14-762V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Decision on Damages;
AND HUMAN SERVICES, * Trivalent Influenza Vaccine;
* Narcolepsy; Cataplexy; Hypocretin.
Respondent. *
* * * * * * * * * * * * * * * * * * *
Curtis R. Webb, Twin Falls, ID, for petitioner.
Ryan D. Pyles, United States Department of Justice, Washington, DC for respondent.
DECISION ON DAMAGES1
On August 22, 2014, Kristina Garrison (“petitioner” or “Ms. Garrison”) filed a petition
pursuant to the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 et seq. (2006)
(“Vaccine Act”). Petitioner alleges that as a result of receiving a trivalent influenza (“flu”)
vaccination on October 28, 2011, she developed narcolepsy and cataplexy. See Petition at ¶ 1, 2
(ECF No. 1). Petitioner also alleges that she has, and will continue to suffer, effects of her
narcolepsy and cataplexy. Id. at ¶ 16.
On April 2, 2015, respondent filed a Rule 4(c) Report and a motion for a ruling on the
record, stating that while she “agrees that petitioner’s appropriate diagnosis is narcolepsy with
cataplexy,” she “concludes that there is insufficient scientific evidence to support a causal
relationship between the influenza vaccine and narcolepsy (with or without cataplexy).”
Respondent’s Report (“Resp. Report”) (ECF No. 21). Nevertheless, although respondent
recommends against compensation in this case, he “will not expend further resources to contest
entitlement in this matter.” Id. Respondent moved for a decision on entitlement based on the
record. Id. On October 27, 2015, I ruled that petitioner had established entitlement to
compensation based on a theory of causation in fact. Ruling on Entitlement (ECF No. 23).
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this unpublished ruling
contains a reasoned explanation for the action in this case, I intend to post it on the website of the United States
Court of Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the
ruling is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version” of the ruling. Id. If neither party files a motion for redaction within 14 days, the ruling will be
posted on the court’s website without any changes. Id.
On March 2, 2018, respondent filed a Proffer on an award of compensation, which
indicates petitioner’s agreement to compensation on the terms set forth therein. Proffer (ECF
No. 96). The Proffer is attached hereto as Exhibit A.
Consistent with the terms of the Proffer, I hereby award the following compensation
for all damages that would be available under 42 U.S.C. § 300aa-15(a):
A. A lump sum payment of $1,017,346.24 (representing compensation for lost past and
future earnings ($757,886.00); pain and suffering ($220,973.00); past unreimbursable
expenses ($19,450.24); and life care expenses for Year One ($19,037.00)), in the
form of a check payable to petitioner; and
B. An amount sufficient to purchase an annuity contract as described in the
Proffer, paid to the life insurance company from which the annuity will be
purchased.
The Clerk of the Court is directed to ENTER JUDGMENT in accordance with this
decision.2
IT IS SO ORDERED.
s/ Thomas L. Gowen
Thomas L. Gowen
Special Master
2
Pursuant to Vaccine Rule 11(a), the entry of judgment is expedited by the parties jointly or separately filing notice
renouncing their right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
KRISTINA GARRISON,
Petitioner,
v. No. 14-762V
Special Master Thomas L. Gowen
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 29, 2015, the Special Master issued a Ruling on Entitlement, concluding that
petitioner is entitled to compensation under the National Childhood Vaccine Injury Act of 1986
(“Vaccine Act”), as amended, 42 U.S.C. §§300aa-10 to -34. Respondent proffers that, based on
the Special Master’s entitlement decision and the evidence of record, petitioner should be
awarded the following items of compensation under the Vaccine Act.1
I. Items of Compensation
A. Life Care Items
The parties engaged life care planners Liz Kattman, BS, MS, and Laura Fox, MSN, BSN,
RN, CLCP, to provide an estimation of petitioner’s future vaccine injury-related needs.2 Based
1
The parties have no objection to the amount of the proffered award of damages. Assuming the
Special Master issues a damages decision in conformity with this proffer, the parties waive their
right to seek review of such damages decision. However, respondent reserves his right, pursuant
to 42 U.S.C. § 300aa-12(e), to seek review of the Special Master’s October 29, 2015, entitlement
decision.
2
For the purposes of this proffer, the term “vaccine related” is as described in the Special
Master’s decision dated October 29, 2015, and only pertains to petitioner’s narcolepsy with
cataplexy and related sequelae.
on the planners evaluations, the parties’ have come to a joint consensus regarding appropriate
items of care. All items of compensation identified by the parties’ life care plan are supported by
the evidence, and are illustrated by the chart entitled Summary of Life Care Items, dated January
31, 2018, attached hereto as Tab A. 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 will never again be
gainfully employed. Therefore, respondent proffers that petitioner should be awarded lost past
and future 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 past and future earnings is
$757,886.00. This amount reflects that the award for lost future earnings has been reduced to net
present value. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $220,973.00 for actual and
projected pain, suffering, and emotional distress. See 42 U.S.C. § 300aa-15(a)(4). This amount
reflects that the award for projected pain and suffering has been reduced to net present value.
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 $19,450.24. Petitioner agrees.
2
E. Medicaid Lien
To the best of respondent’s knowledge and upon the representation of petitioner,
petitioner has never received Medicaid benefits. Accordingly, there is no Medicaid lien.
F. Attorneys’ Fees and Costs
This proffer does not address final attorneys’ fees and costs. Petitioner is entitled to
reasonable attorneys’ fees and costs incurred following interim fees and costs awarded by
judgment entered on August 22, 2016, 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 should be made
through a combination of one-time lump sum payments and future annuity payments as
described below, and request that the Special Master’s decision and the Court’s judgment award
the following for all compensation3 available under 42 U.S.C. § 300aa-15(a).
Respondent proffers and petitioner agrees that an award of compensation include the
following elements:
A. A lump sum payment of $1,017,346.24, (representing compensation for lost past and
future earnings ($757,886.00), pain and suffering ($220,973.00), past unreimbursable expenses
($19,450.24), and life care expenses for Year One ($19,037.00)), in the form of a check payable
to petitioner; and
3
Should petitioner die prior to entry of judgment, respondent would oppose any award
for future medical expenses, future lost earnings and future projected pain and suffering and the
parties reserve the right to move the Court for appropriate relief.
3
B. An amount sufficient to purchase an annuity contract,4 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 company5 from
which the annuity will be purchased.6 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,
only so long as petitioner 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. Annual totals set forth in the far-right column of 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.
4
To satisfy the conditions set forth herein, in respondent’s discretion, respondent may
purchase one or more annuity contracts from one or more life insurance companies.
5
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.
6
Petitioner authorizes the disclosure of certain documents filed by the petitioners 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
1. Growth Rate
Respondent proffers that a six percent (6%) growth rate should be applied to life care
items pertaining to insurance coverage, and a four percent (4%) growth rate should be applied to
all remaining 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: six percent (6%) compounded annually
from the date of judgment for insurance (illustrated in the first column of Tab A), and four
percent (4%) compounded annually from the date of judgment for all remaining items.
2. Life-Contingent Annuity
Petitioner will continue to receive the annuity payments from the Life Insurance
Company only so long as petitioner is alive at the time that a particular payment is due.
Petitioner’s estate shall provide written notice to the Secretary of Health and Human Services
and the Life Insurance Company within twenty (20) days of petitioner’s death.
3. Guardianship Issues
Petitioner is a legally competent adult, and aforementioned payments will be made
directly to petitioner.
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to petitioner: $1,017,346.24
B. An amount sufficient to purchase the annuity contract
described above in section II. B.
C. Reasonable final attorneys’ fees and litigation costs: TBD
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
5
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
s/ RYAN D. PYLES
RYAN D. PYLES
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) 616-9847
DATED: March 2, 2018
6
TAB A
Pet. Kristina Garrison
D.O.B. 12/13/1972
DATE: 01/31/18
TIME: 06:58 PM
SUMMARY OF LIFE CARE ITEMS - RESPONDENT'S LIFE CARE PLAN dated November 16, 2017 - As Modified January 31, 2018
ITEM OF CARE Insurance Medications Home Transportation TOTALS TOTALS OF
Services of Items 4.0% ITEMS
with a 4.0% & APPLYING
Growth Rate THE GROWTH
GROWTH RATE 6.0% 4.0% 4.0% 4.0% RATE
AGE YEAR
46 2018 2,520.00 9,346.00 640.00 3,103.96 19,037 19,037
47 2019 2,520.00 9,346.00 0.00 31.96 13,610 14,154
48 2020 2,520.00 9,346.00 0.00 31.96 13,610 14,721
49 2021 2,520.00 9,346.00 0.00 31.96 13,610 15,309
50 2022 2,520.00 9,346.00 0.00 31.96 12,038 14,083
51 2023 2,520.00 9,346.00 0.00 31.96 12,038 14,646
52 2024 2,520.00 9,346.00 0.00 31.96 12,038 15,232
53 2025 2,520.00 9,346.00 0.00 31.96 12,038 15,841
54 2026 2,520.00 9,346.00 0.00 31.96 12,038 16,475
55 2027 2,520.00 9,346.00 0.00 31.96 12,038 17,134
56 2028 2,520.00 9,346.00 0.00 31.96 12,038 17,819
57 2029 2,520.00 9,346.00 0.00 31.96 12,038 18,532
58 2030 2,520.00 9,346.00 0.00 31.96 12,038 19,273
59 2031 2,520.00 9,346.00 0.00 31.96 12,038 20,044
60 2032 2,520.00 9,346.00 0.00 31.96 12,038 20,846
61 2033 2,520.00 9,346.00 0.00 31.96 12,038 21,680
62 2034 2,520.00 9,346.00 0.00 31.96 12,038 22,547
63 2035 2,520.00 9,346.00 0.00 31.96 12,038 23,449
64 2036 2,520.00 9,346.00 0.00 31.96 12,038 24,387
65 2037 2,520.00 9,346.00 0.00 31.96 12,038 25,362
66 2038 912.00 9,346.00 0.00 31.96 10,430 22,853
67 2039 912.00 9,346.00 0.00 31.96 10,430 23,767
68 2040 912.00 9,346.00 0.00 31.96 10,430 24,718
69 2041 912.00 9,346.00 0.00 31.96 10,430 25,707
70 2042 912.00 9,346.00 0.00 31.96 10,430 26,735
71 2043 912.00 9,346.00 0.00 31.96 10,430 27,805
72 2044 912.00 9,346.00 0.00 31.96 10,430 28,917
73 2045 912.00 9,346.00 0.00 31.96 10,430 30,073
74 2046 912.00 9,346.00 0.00 31.96 10,430 31,276
75 2047 912.00 9,346.00 0.00 31.96 10,430 32,527
76 2048 912.00 9,346.00 0.00 31.96 10,430 33,829
77 2049 912.00 9,346.00 0.00 31.96 10,430 35,182
78 2050 912.00 9,346.00 0.00 31.96 10,430 36,589
79 2051 912.00 9,346.00 0.00 31.96 10,430 38,052
80 2052 912.00 9,346.00 0.00 31.96 10,430 39,575
81 2053 912.00 9,346.00 0.00 31.96 10,430 41,158
82 2054 912.00 9,346.00 0.00 31.96 10,430 42,804
83 2055 912.00 9,346.00 0.00 31.96 10,430 44,516
66,816 355,148 640 4,286 440,213 956,653
15.18% 80.68% 0.15% 0.97% 100.00%
This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990
Garrison RESP LCP dated 11 16 17 REV 4 01 31 18
PAGE 1