       In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                           No. 11-140V
                                       Filed: June 15, 2015

* * * * * * * * * * * * * * * *                            UNPUBLISHED
SHERRY SALMINS,                             *
                                            *
                                            *              Special Master Dorsey
               Petitioner,                  *
                                            *
v.                                          *
                                            *              Decision on Damages;
SECRETARY OF HEALTH                         *              HPV vaccine;
AND HUMAN SERVICES,                         *              Guillain-Barré Syndrome.
                                            *
               Respondent.                  *
                                            *
* * * * * * * * * * * * * * * *
Meredith Daniels and Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for
petitioner.
Jennifer L. Reynaud, United States Department of Justice, Washington, DC, for respondent.

                                  DECISION ON DAMAGES1

        On March 7, 2011, Sherry Salmins (“petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006). Petitioner alleged
that as a result of receiving a Human Papillomavirus (“HPV”) vaccine on January 27, 2009, she
developed Guillain-Barré Syndrome. Amended Petition at Preamble. Further, petitioner alleged
that she experienced residual effects of her injury for more than six months. Id. at ¶ 38.

1
  Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by
Vaccine Rule 18(b), each party has 14 days within which to request 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).

2
 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.

                                                  1
        On August 31, 2011, respondent filed a Rule 4(c) Report [“Respondent’s Report”] arguing
against compensation for petitioner under the terms of the Vaccine Act. Resp’t Report at 1. The
parties filed respective expert reports and an entitlement hearing was held before the undersigned
on August 21, 2013. A Ruling on Entitlement, finding that petitioner is entitled to compensation
based on an injury caused-in-fact by a covered vaccine, was issued on March 31, 2014. On April
3, 2014, a damages order was issued.

        On June 11, 2015, respondent filed a Proffer on an award of compensation, indicating that
petitioner has agreed to compensation in the amount of $1,405,466.39 lump sum, to be paid to
petitioner only, for life care expenses expected to be incurred during the first year after judgment,
lost earnings, pain and suffering, and past unreimburseable expenses. Petitioner has also agreed to
receive an amount sufficient to purchase an annuity contract described in section II(B) of the
Proffer, attached hereto as Appendix A. On June 15, 2015, petitioner’s counsel was contacted by
the undersigned’s chambers, and counsel confirmed petitioner’s agreement with the proposed
compensation amounts. Accordingly, pursuant to the terms in the attached Proffer, the
undersigned awards petitioner the following compensation for all damages that would be
available under 42 U.S.C. § 300aa-15(a):

              1.      A lump sum payment of $1,405,466.39 in the form of a check payable to
                      petitioner, Sherry Salmins; and

              2.      An amount sufficient to purchase an annuity contract to provide the
                      benefits described in section II, paragraph B of the Proffer, to be paid
                      to a life insurance company meeting the criteria described in footnote 4.

         In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3

       IT IS SO ORDERED.

                                              s/ Nora Beth Dorsey
                                              Nora Beth Dorsey
                                              Special Master




3
 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.


                                                 2
             Case 1:11-vv-00140-UNJ Document 118 Filed 06/11/15 Page 1 of 5

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



SHERRY SALMINS,

                  Petitioner,                                   No. 11-140V
                                                                Special Master Dorsey
v.                                                              ECF

SECRETARY OF HEALTH AND
HUMAN SERVICES,

                  Respondent.



               RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I.       Items of Compensation

         A.       Life Care Items

         The parties engaged life care planner Laura Fox, MSN, RN, CLCP, and petitioner

engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of Sherry Salmins’s future

vaccine-injury related needs. For the purposes of this proffer, the term “vaccine related” is as

described in the Special Master’s Ruling on Entitlement filed March 31, 2014. 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 Sherry Salmins, attached hereto as

Tab A. 1 Respondent proffers that Sherry Salmins 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.




         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.

                                                         -1-
           Case 1:11-vv-00140-UNJ Document 118 Filed 06/11/15 Page 2 of 5

          B.     Lost Earnings

          The parties agree that based upon the evidence of record, Sherry Salmins has suffered a

past loss of earnings and will continue to suffer a loss of earnings in the future. Therefore,

respondent proffers that Sherry Salmins 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

Sherry Salmins’s lost earnings is $1,198,320.52. Petitioner agrees.

          C.     Pain and Suffering

          Respondent proffers that Sherry Salmins should be awarded $180,000.00 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 Sherry Salmins’s 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 $5,047.17.

Petitioner agrees.

          E.     Medicaid Lien

          Petitioner represents that there are no Medicaid liens outstanding against her.

II.       Form of the Award

          The parties recommend that the compensation provided to Sherry Salmins should be

made through a combination of lump sum payments and future annuity payments as described




                                                  -2-
             Case 1:11-vv-00140-UNJ Document 118 Filed 06/11/15 Page 3 of 5

below, and request that the Special Master’s decision and the Court’s judgment award the

following: 2

         A. A lump sum payment of $1,405,466.39, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($22,098.70), lost earnings

($1,198,320.52), pain and suffering ($180,000.00), and past unreimbursable expenses

($5,047.17), in the form of a check payable to petitioner, Sherry Salmins.

         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, 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,

Sherry Salmins, only so long as Sherry Salmins 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




         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
           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 1:11-vv-00140-UNJ Document 118 Filed 06/11/15 Page 4 of 5

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, Sherry Salmins, 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 Sherry Salmins’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, Sherry Salmins:                                      $1,405,466.39
         B.       An amount sufficient to purchase the annuity contract described
                  above in section II. B.




         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 (con’t)
System of Records, No. 09-15-0056.
                                                         -4-
        Case 1:11-vv-00140-UNJ Document 118 Filed 06/11/15 Page 5 of 5




                                    Respectfully submitted,

                                    BENJAMIN C. MIZER
                                    Principal Deputy 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/ Jennifer L. Reynaud
                                    JENNIFER L. REYNAUD
                                    Trial Attorney
                                    Torts Branch, Civil Division
                                    U.S. Department of Justice
                                    P.O. Box 146
                                    Benjamin Franklin Station
                                    Washington, D.C. 20044-0146
                                    Telephone: (202) 305-1586

Dated: June 11, 2015.




                                      -5-
                                        Case 1:11-vv-00140-UNJ      Document
                                                     Appendix A: Items         118-1 forFiled
                                                                       of Compensation        06/11/15
                                                                                         Sherry Salmins Page 1 of 2                                                 Page 1 of 2
                                              Lump Sum
                                             Compensation      Compensation     Compensation     Compensation     Compensation    Compensation     Compensation       Compensation
ITEMS OF COMPENSATION G.R. * M                  Year 1           Year 2          Years 3-4         Year 5          Years 6-10       Year 11         Years 12-19         Year 20
                                                2015              2016           2017-2018          2019           2020-2024         2025           2026-2033            2034
Medicare Part B Premium        5%       M         1,258.80         1,258.80         1,258.80         1,258.80         1,258.80        1,258.80          1,258.80          1,258.80
Medicare Supplemental Ins      5%       M
Neurologist                    5%   *
Pain Specialist                5%   *
EMG                            5%   *
PT                             4%
OT                             4%
Massage Therapy                4%                    750.00           750.00           750.00           750.00
Nutritionist                   4%   *
Grab Bars                      4%                      50.00                                                                                                                  50.00
Cane                           4%
Scooter                        4%   *
Scooter Battery                4%   *
Scooter Battery Charger        4%   *
YMCA                           4%                    740.00           740.00           740.00           740.00           740.00           740.00          740.00              740.00
Assistance in Home             4%       M         17,500.00        17,500.00        17,500.00        17,500.00        17,500.00        17,500.00       17,500.00           17,500.00
Mileage: Neurologist           4%                     10.44            10.44            10.44            10.44            10.44            10.44           10.44               10.44
Mileage: EMG                   4%                                                                        10.44
Mileage: Nutritionist          4%                     18.03             9.02
Mileage: Massage               4%                     22.90            22.90            22.90            22.90
Mileage: YMCA                  4%                    106.08           106.08           106.08           106.08           106.08           106.08           106.08            106.08
Sun Truck Mobility             4%                      4.35             4.35             4.35             4.35             4.35             4.35             4.35              4.35
Driver's Eval                  0%                    394.00
Hand Controls                  4%                  1,200.00                                                                             1,200.00
Hand Controls Maint            4%                     44.10            44.10            44.10            44.10            44.10            44.10            44.10             44.10
Lost Future Earnings                           1,198,320.52
Pain and Suffering                               180,000.00
Past Unreimbursable Expenses                       5,047.17
Annual Totals                                  1,405,466.39        20,445.69        20,436.67        20,447.11        19,663.77        20,863.77       19,663.77           19,713.77
                                            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 ($22,098.70), lost earnings ($1,198,320.52), pain and suffering ($180,000.00), and past unreimbursable
                                            expenses ($5,047.17): $1,405,466.39.
                                            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.
                                        Case 1:11-vv-00140-UNJ      Document
                                                     Appendix A: Items         118-1 forFiled
                                                                       of Compensation        06/11/15
                                                                                         Sherry Salmins Page 2 of 2                                                Page 2 of 2

                                            Compensation     Compensation     Compensation     Compensation     Compensation     Compensation     Compensation     Compensation
ITEMS OF COMPENSATION G.R. * M                Year 21         Years 22-23       Year 24         Years 25-31       Year 32         Years 33-38      Years 39-40     Years 41-Life
                                               2035           2036-2037          2038           2039-2045          2046           2047-2052        2053-2054        2055-Life
Medicare Part B Premium        5%       M       1,258.80          1,258.80        1,258.80          1,258.80        1,258.80
Medicare Supplemental Ins      5%       M                                                                                             2,630.40         2,630.40            2,630.40
Neurologist                    5%   *
Pain Specialist                5%   *
EMG                            5%   *
PT                             4%                                                                                                                        270.00             270.00
OT                             4%                                                                                                                        180.00             180.00
Massage Therapy                4%
Nutritionist                   4%   *
Grab Bars                      4%
Cane                           4%                                                      19.00             2.71             2.71             2.71             2.71               2.71
Scooter                        4%   *
Scooter Battery                4%   *
Scooter Battery Charger        4%   *
YMCA                           4%                   740.00          740.00           740.00           740.00           740.00
Assistance in Home             4%       M        17,500.00       17,500.00        17,500.00        17,500.00        17,500.00        17,500.00        17,500.00         17,500.00
Mileage: Neurologist           4%                    10.44           10.44            10.44            10.44            10.44            10.44            10.44             10.44
Mileage: EMG                   4%
Mileage: Nutritionist          4%
Mileage: Massage               4%
Mileage: YMCA                  4%                   106.08           106.08          106.08           106.08           106.08
Sun Truck Mobility             4%                     4.35             4.35            4.35             4.35             4.35              4.35             4.35
Driver's Eval                  0%
Hand Controls                  4%                 1,200.00
Hand Controls Maint            4%                    44.10            44.10            44.10            44.10
Lost Future Earnings
Pain and Suffering
Past Unreimbursable Expenses
Annual Totals                                    20,863.77       19,663.77        19,682.77        19,666.48        19,622.38        20,147.90        20,597.90         20,593.55
                                            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 ($22,098.70), lost earnings ($1,198,320.52), pain and suffering ($180,000.00), and past unreimbursable
                                            expenses ($5,047.17): $1,405,466.39.
                                            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.
