CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1141V
UNPUBLISHED
CRYSTAL ALLEN, Chief Special Master Corcoran
Petitioner, Filed: February 4, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Tetanus Diphtheria acellular
Pertussis (Tdap) Vaccine; Shoulder
Respondent. Injury
John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On August 23, 2017, Crystal Allen 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 a shoulder injury related to vaccine
administration (SIRVA) after receiving a Tdap vaccination on April 7, 2016. Petition at 1.
Petitioner further alleges that she received the vaccination in the United States, she
experienced symptoms within 48 hours of vaccination, and she suffered the residual
effects or complications of her illness for more than six months. Petition at 1, 12. The case
was assigned to the Special Processing Unit of the Office of Special Masters.
On May 15, 2018, after Respondent conceded that Petitioner’s injury was caused-
in-fact by the Tdap vaccine she received on April 7, 2016, a ruling on entitlement was
issued, finding Petitioner entitled to compensation for her right shoulder injury. On
February 1, 2021, Respondent filed a proffer on award of compensation (“Proffer”)
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
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 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 $690,041.51, representing compensation for life
care expenses expected to be incurred during the first year after judgment
($18,842.07), lost earnings ($492,214.00), pain and suffering ($170,000.00),
and past unreimbursable expenses ($8,985.44), in the form of a check
payable to Petitioner, Crystal Allen.
2. 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
CRYSTAL ALLEN,
Petitioner, No. 17-1141V ECF
Chief Special Master Corcoran
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On August 23, 2017, Crystal Allen (“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 a Shoulder Injury Related to Vaccine Administration
(“SIRVA”) to her right shoulder from a Tetanus Diphtheria acellular Pertussis (“Tdap”) vaccine
administered on April 7, 2016. 1 Petition at 1. On May 15, 2018, the Secretary of Health and
Human Services (“respondent”) filed his Rule 4(c) Report conceding that petitioner is entitled to
compensation for a right shoulder injury based on causation-in-fact. ECF No. 27. On May 15,
2018, the Court issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF
No. 28.
I. Items of Compensation
A. Life Care Items
The parties engaged life care planner Linda Curtis, RN MS, CNLCP, CCM, to provide an
estimation of petitioner’s future vaccine-injury related needs. For the purposes of this proffer,
1
On March 28, 2018, petitioner filed a First Amended Petition. ECF No. 21.
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 Crystal Allen, attached hereto as Tab
A. 2 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 a loss of
earnings. 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 $492,214.00. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $170,000.00 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 $8,985.44. Petitioner agrees.
2
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
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: 3
A. A lump sum payment of $690,041.51, representing compensation for life care
expenses expected to be incurred during the first year after judgment ($18,842.07), lost earnings
($492,214.00), pain and suffering ($170,000.00), and past unreimbursable expenses ($8,985.44)
in the form of a check payable to petitioner, Crystal Allen.
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, paid to the life insurance company 5 from
3
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.
4
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.
3
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,
Crystal Allen, 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. 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, Crystal Allen, 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 Crystal Allen’s death.
4
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, Crystal Allen: $690,041.51
B. An amount sufficient to purchase the annuity contract described
above in section II.B.
6
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
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Acting Deputy Director
Torts Branch, Civil Division
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
s/Colleen C. Hartley
COLLEEN C. HARTLEY
Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-3644
colleen.hartley@usdoj.gov
Dated: February 1, 2021
6
Appendix A: Items of Compensation for Crystal Allen Page 1 of 1
Lump Sum
ITEMS OF Compensation Compensation Compensation Compensation Compensation Compensation
COMPENSATION G.R. * M Year 1 Year 2 Year 3 Years 4-16 Years 17-23 Years 24-Life
2021 2022 2023 2024-2036 2037-2043 2044-Life
BCBS Prem. 5% M 6,817.92 6,817.92 6,817.92 6,817.92
BCBS MOP 5% 6,900.00 6,900.00 6,900.00 6,900.00
Medicare Part B Prem. 5%
Medicare Part B Ded. 5% 203.00 203.00
Medigap G 5% M 1,512.72 1,512.72
Medicare Part D 5% M 625.98 625.98
Pain Mngmt 5% *
Pain Pump 5% *
Lab Testing 5% *
Biofeedback Training 4% *
Warm Water PT 4% *
Psychotherapy 4% *
Reacher 4% 25.15 5.03 5.03 5.03 5.03 5.03
Adapted Tools 4% 175.00 58.33 58.33 58.33
Items for Pain Mngmt 4% 100.00 33.33 33.33 33.33
Hydrocodone 5% *
Ancillary Services 4% M 960.00 960.00 960.00 960.00 960.00
Home Health Care 4% M 3,432.00 3,432.00 3,432.00 3,432.00 6,864.00 6,864.00
Mileage: Pain Mngmt 4% 48.00 48.00 48.00 48.00 48.00 48.00
Mileage: PT 4% 192.00 192.00 96.00 32.00 32.00 32.00
Mileage: Psychology 4% 96.00 19.20 19.20 19.20 19.20 19.20
Mileage: Biofeedback 4% 96.00 48.00 48.00
Lost Future Earnings 492,214.00
Pain and Suffering 170,000.00
Past Expenses 8,985.44
Annual Totals 690,041.51 18,513.81 18,417.81 18,305.81 10,269.93 9,309.93
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 ($18,842.07), lost earnings ($492,214.00), pain and suffering ($170,000.00), and past unreimbursable
expenses ($8,985.44): $690,041.51.
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 12 monthly installments totaling the annual amount indicated.
TAB A