In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-930V
UNPUBLISHED
DONNA CARMICHAEL, Chief Special Master Corcoran
Petitioner, Filed: September 10, 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.
Randall G. Knutson, Knutson & Casey Law Firm, Mankato, MN, for petitioner.
Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On June 28, 2018, Donna Carmichael 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) after
receiving an influenza vaccination on October 16, 2016. Petition at 1. Petitioner further
alleges she received the vaccination in the United States, experienced symptoms of GBS
more than three days after, and within six weeks of vaccination, she suffered the residual
effects or complications of her illness for more than six months. Petition at 1, 3. The case
was assigned to the Special Processing Unit of the Office of Special Masters.
On June 10, 2019, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for GBS. On September 3, 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.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 decision 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.
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).
Proffer at 1-2. In the Proffer, Respondent represented that Petitioner agrees with 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. Proffer at 1-2. In the Proffer, Respondent represented
that Petitioner agrees with 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 $539,812.21, representing compensation for life
care expenses expected to be incurred during the first year after judgment
($7,201.51), lost earnings ($338,447.64), pain and suffering ($150,000.00),
and past unreimbursable expenses ($44,163.06), in the form of a check
payable to Petitioner, Donna Carmichael.
2. A lump sum payment of $59,595.99, representing compensation for
satisfaction of a Texas Medicaid & Healthcare Partnership Medicaid lien,
payable jointly to Petitioner and TMHP-Medicaid, and mailed to:
TMHP TPL-Tort Department
Attn: Tort Receivables
P.O. Box 202948
Austin, TX 78720-2948
Client ID: 513541157
TMHP Case Number: 223082946280818
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.
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
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
DONNA CARMICHAEL,
Petitioner, No. 18-930V (ECF)
Chief Special Master Corcoran
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On June 28, 2018, Donna Carmichael (“petitioner”) filed a petition for compensation
under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34
(“Vaccine Act” or “Act”), alleging that she suffered Guillain-Barré Syndrome (“GBS”) as a
result of an influenza (“flu”) vaccine she received on October 17, 2016. Petition at 1. On May
17, 2019, the Secretary of Health and Human Services (“respondent”) filed his Rule 4(c) Report
conceding that petitioner suffered the Table injury of GBS following a flu vaccine within the
Table time period, and is entitled to compensation. On June 10, 2019, the Court issued a Ruling
on Entitlement finding petitioner entitled to compensation. ECF 22; ECF 24.
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Laura E. Fox, MSN, BSN, RN, CLCP, and
petitioner engaged Amy MacKenzie, PhD, RN, CLCP, 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
1
life care plan are supported by the evidence, and are illustrated by the chart entitled Appendix A:
Items of Compensation for Donna Carmichael, attached hereto as Tab A. 1 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, Donna Carmichael 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 Donna
Carmichael’s lost earnings is $338,447.64. 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 any 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 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 $44,163.06. 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.
2
E. Medicaid Lien
Respondent proffers that petitioner should be awarded funds to satisfy a lien in the
amount of $59,595.99, which represents full satisfaction of any right of subrogation, assignment,
claim, lien, or cause of action the Texas Medicaid & Healthcare Partnership may have against
any individual as a result of any Medicaid payments the Texas Medicaid & Healthcare
Partnership 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 October 17, 2016, under Title XIX of the Social Security Act.
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 Special Master’s decision and the Court’s judgment award the following: 2
A. A lump sum payment of $539,812.21, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($7,201.51), lost earnings
($338,447.64), pain and suffering ($150,000.00), and past unreimbursable expenses
($44,163.06), in the form of a check payable to petitioner, Donna Carmichael.
B. A lump sum payment of $59,595.99, representing compensation for satisfaction of a
Texas Medicaid & Healthcare Partnership Medicaid lien, payable jointly to petitioner and
TMHP-Medicaid, and mailed to:
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
TMHP TPL-Tort Department
Attn: Tort Receivables
P.O. Box 202948
Austin, TX 78720-2948
Client ID: 513541157
TMHP Case Number: 223082946280818
Petitioner agrees to endorse this payment to TMHP-Medicaid.
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
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,
Donna Carmichael, 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,
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.
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
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, Donna Carmichael, 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 Donna Carmichael’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, Donna Carmichael: $539,812.21
B. Medicaid lien: $ 59,595.99
C. An amount sufficient to purchase the annuity contract described
above in section II.C.
5
Respectfully submitted,
ETHAN P. DAVIS
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
s/Linda S. Renzi
LINDA S. RENZI
Senior Trial Counsel
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-4133
Dated: September 3, 2020
6
Appendix A: Items of Compensation for Donna Carmichael Page 1 of 1
Lump Sum
Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-11 Years 12-15 Years 16-Life
2020 2021-2030 2031-2034 2035-Life
Medicare Part B Premium 5% M 1,735.20 1,735.20 1,735.20
Medicare Part B Deductible 5% 198.00
Medicare Adv 5% 504.00 504.00 504.00
Neurologist 5% * 180.00 90.00 90.00
Household Assistance 4% M 4,132.96 4,132.96 4,132.96 7,252.55
Gabapentin 5% * 67.66 67.66
Heated Socks 4% 50.00
Bathroom Safety Equip 4% 106.45 21.29 21.29 21.29
Life Alert 4% 399.24 399.24 399.24 399.24
Wheeled Walker 4% * 26.00 5.20 5.20 5.20
Lost Earnings 338,447.64
Pain and Suffering 150,000.00
Past Unreimbursable Expenses 44,163.06
Medicaid Lien 59,595.99
Annual Totals 599,408.20 6,955.55 6,887.89 7,876.28
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 ($7,201.51), lost earnings ($338,447.64), pain and suffering ($150,000.00), and past unreimbursable
expenses ($44,163.06): $539,812.21.
As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
petitioner and TMHP-Medicaid, as reimbursement of the state's Medicaid lien: $59,595.99.
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.