             In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                        No. 13-109V
                                    (Filed: June 2, 2014)

* * * * * * * * * * * * * *                *
SARAH BEHIE,                               *               UNPUBLISHED
                                           *               Special Master Dorsey
             Petitioner,                   *
                                           *
v.                                         *
                                           *               Decision on Proffer; Damages;
SECRETARY OF HEALTH                        *               Influenza (Flu) Vaccine;
AND HUMAN SERVICES,                        *               Guillain-Barré Syndrome (GBS);
                                           *               Respondent Will Not Further Defend
             Respondent.                   *
                                           *
* * * * * * * * * * * * * * *
Lawrence R. Cohan, Anapol, Schwartz, et. al., Philadelphia, PA, for petitioner.
Lisa Ann Watts, United States Department of Justice, Washington, DC, for respondent.

                             DECISION AWARDING DAMAGES1

       On February 8, 2013, Sarah Behie (“petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34
(2006). The petition alleges that petitioner suffered Guillain-Barré syndrome (GBS) which was
caused by an influenza (flu) vaccine administered to her on October 5, 2010. Petition at ¶¶ 1-7.

       Respondent states that upon her review of the facts of this case, she does not believe that
the available evidence is sufficient to prove causation in this case. Nevertheless, respondent

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.
recognizes that when faced with similar evidence in past cases, some special masters have found
such evidence to satisfy petitioners’ burden of proving causation, and respondent does not wish
to present evidence to rebut such a finding here. Thus, respondent states that she will not further
defend entitlement in this case. Respondent’s Report at 6-7, filed April 17, 2014.

       Informed by respondent’s position in this case and upon a review of the record as a
whole, the undersigned finds that petitioner is entitled to compensation under the Vaccine Act.

        On May 30, 2014, respondent filed a Proffer on Award of Compensation (“Proffer”). In
the Proffer, respondent represented that petitioner agrees with the proffered award. Based on the
record as a whole, the undersigned finds that petitioner is entitled to an award as stated in the
Proffer.

        Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner:

       A.       A lump sum payment of $1,012,709.87, representing compensation for life care
                expenses expected to be incurred during the first year after judgment
                ($49,355.06), lost earnings ($711,723.75), pain and suffering ($250,000.00), and
                past unreimbursable expenses ($1,631.06), in the form of a check payable to
                petitioner, Sarah Behie.

       B.       A lump sum payment of $58,753.56, representing compensation for satisfaction
                of the Commonwealth of Pennsylvania Medicaid lien, payable jointly to
                petitioner and

                               Department of Public Welfare
                               Attn: Marie A. Trayer
                               PA DPW
                               P.O. Box 8486
                               Harrisburg, PA 17105-8486
                               Medicaid Id: 830152062

                Petitioner agrees to endorse this payment to the Department of Public Welfare.

        C.      An amount sufficient to purchase an annuity contract, subject to the conditions
                described in the Proffer and the attachments to that Proffer.

Proffer ¶ II.




                                                 2
        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT herewith.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.
                   IN THE UNITED STATES COURT OF FEDERAL CLAIMS

                        OFFICE OF SPECIAL MASTERS
_______________________________________
SARAH BEHIE,                            )
                                        )   ECF
                        Petitioner,     )
                                        )
            v.                          )   No. 13-109V
                                        )   Special Master
SECRETARY OF HEALTH AND HUMAN )             Nora Beth Dorsey
SERVICES,                               )
                                        )
                        Respondent.     )
                                        )


               RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I.       Items of Compensation

         A.       Life Care Items

         Respondent engaged life care planner Laura Fox, MSN, RN, CNLCP, and petitioner

engaged Roberta Hurley and Ellen Econs to provide an estimation of Sarah Behie’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 issued May 7, 2014. All items of

compensation identified in the parties’ joint life care plan are supported by the evidence, and are

illustrated by the chart entitled Appendix A: Items of Compensation for Sarah Behie, attached

hereto as Tab A. 1 Respondent proffers that Sarah Behie 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-
          B.     Lost Earnings

          The parties agree that based upon the evidence of record, Sarah Behie has suffered a past

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

respondent proffers that Sarah Behie 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

Sarah Behie’s lost earnings is $711,723.75. Petitioner agrees.

          C.     Pain and Suffering

          Respondent proffers that Sarah Behie should be awarded $250,000.00 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 Sarah Behie’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 $1,631.06.

Petitioner agrees.

          E.     Medicaid Lien

          Respondent proffers that Sarah Behie should be awarded funds to satisfy the

Commonwealth of Pennsylvania lien in the amount of $58,753.56, which represents full

satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the

Commonwealth of Pennsylvania may have against any individual as a result of any Medicaid

payments the Commonwealth of Pennsylvania has made to, or on behalf of, Sarah Behie 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 5, 2010, under Title XIX of the Social


                                                  -2-
Security Act.

II.      Form of the Award

         The parties recommend that the compensation provided to Sarah Behie 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 $1,012,709.87, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($49,355.06), lost earnings

($711,723.75), pain and suffering ($250,000.00), and past unreimbursable expenses ($1,631.06),

in the form of a check payable to petitioner, Sarah Behie.

         B. A lump sum payment of $58,753.56, representing compensation for satisfaction of the

Commonwealth of Pennsylvania Medicaid lien, payable jointly to petitioner and

                                         Department of Public Welfare
                                            Attn: Marie A. Trayer
                                                   PA DPW
                                                P.O. Box 8486
                                          Harrisburg, PA 17105-8486
                                           Medicaid ID: 830152062

Petitioner agrees to endorse this payment to the Department of Public Welfare.

         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


         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;

                                                         -3-
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,

Sarah Behie, only so long as Sarah Behie 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, Sarah Behie, is alive at the time that a particular payment is due.




                  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 (con’t)
System of Records, No. 09-15-0056.
                                                         -4-
Written notice shall be provided to the Secretary of Health and Human Services and the Life

Insurance Company within twenty (20) days of Sarah Behie’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, Sarah Behie:                            $1,012,709.87
       B.     Medicaid Lien:                                                       $ 58,753.56
       C.     An amount sufficient to purchase the annuity contract described
              above in section II. C.

                                             Respectfully submitted,

                                             STUART F. DELERY
                                             Assistant Attorney General

                                             RUPA BHATTACHARYYA
                                             Director
                                             Torts Branch, Civil Division

                                             VINCENT J. MATANOSKI
                                             Deputy Director
                                             Torts Branch, Civil Division

                                             LINDA S. RENZI
                                             Senior Trial Counsel
                                             Torts Branch, Civil Division

                                             s/Lisa A. Watts
                                             LISA A. WATTS
                                             Senior 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) 616-4099

Dated: May 30, 2014.




                                               -5-
                                                    Appendix A: Items of Compensation for Sarah Behie                                          Page 1 of 4


                                           Lump Sum
                                          Compensation   Compensation   Compensation   Compensation   Compensation   Compensation   Compensation   Compensation
 ITEMS OF COMPENSATION       G.R. * M       Year 1         Year 2        Years 3-5       Year 6        Years 7-10      Year 11        Year 12       Years 13-15
                                             2014           2015         2016-2018        2019         2020-2023        2024           2025         2026-2028
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 Part B Deductible   5%   *
Medigap F                    5%               2,544.00       2,544.00       2,544.00       2,544.00       2,544.00       2,544.00       2,544.00       2,544.00
Medicare Part D              5%       M       1,974.86       1,974.86       1,974.86       1,974.86       1,974.86       1,974.86       1,974.86       1,974.86
OTC Meds                     4%                 242.22         242.22         242.22         242.22         242.22         242.22         242.22         242.22
Rheumatology                 5%   *
Kidney Specialist            5%   *
Neurology                    5%   *
Nutritionist                 4%   *
Counseling                   4%   *
Rehab                        4%   *
Orthotics                    4%   *
Finger Splints               4%   *
Manual WC                    4%                 895.00                                       895.00                        895.00
Gel Seat for WC              4%                  54.99          27.50          27.50          27.50          27.50          27.50          27.50             27.50
Power WC                     4%   *
Battery Repl                 4%   *
Power WC Maint               4%   *
Seated Wheeled Walker        4%                                 89.47          17.89          17.89          17.89          17.89          17.89             17.89
Adj Bed                      4%
PT Equip                     4%                                584.60                                                                     584.60
Zipper Pull/ Hook            4%                  15.48           3.10           3.10           3.10           3.10           3.10           3.10              3.10
Universal Cuff               4%                  11.93          11.93          11.93          11.93          11.93          11.93          11.93             11.93
Medical Stockings            4%                  63.96          63.96          63.96          63.96          63.96          63.96          63.96             63.96
Reacher                      4%                  20.89           4.18           4.18           4.18           4.18           4.18           4.18              4.18
ADL                          4%                 250.00          50.00          50.00          50.00          50.00          50.00          50.00             50.00
Bath Chair                   4%   *
Raised Toilet Seat           4%                  29.75           7.44           7.44           7.44           7.44           7.44           7.44              7.44
Moist Heat Mitt              4%                  73.20          36.60          36.60          36.60          36.60          36.60          36.60             36.60
Microsoft Surface            4%                 499.99
                                                       Appendix A: Items of Compensation for Sarah Behie                                                   Page 2 of 4


                                            Lump Sum
                                           Compensation    Compensation     Compensation    Compensation     Compensation    Compensation     Compensation    Compensation
 ITEMS OF COMPENSATION         G.R. * M      Year 1          Year 2          Years 3-5        Year 6          Years 7-10       Year 11          Year 12        Years 13-15
                                              2014            2015           2016-2018         2019           2020-2023         2024             2025          2026-2028
Dragon Naturally Speaking      4%                 99.99           20.00            20.00           20.00            20.00           20.00            20.00            20.00
Home Care                      4%    M        39,520.00       39,520.00        29,640.00       29,640.00        29,640.00       29,640.00        29,640.00       29,640.00
Home Mods                      4%                              2,000.00
Access Van                     4%                             53,200.00                                                                           42,560.00
Case Mngt                      4%               1,800.00         900.00            900.00           900.00
Lost Earnings                                 711,723.75
Pain and Suffering                            250,000.00
Past Unreimbursable Expenses                    1,631.06
Medicaid Lien                                  58,753.56
Annual Totals                               1,071,463.43      102,538.66        36,802.48       37,697.48        35,902.48       36,797.48        79,047.08       35,902.48
                                          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 ($49,355.06), lost earnings ($711,723.75), pain and suffering ($250,000.00), and past unreimbursable
                                          expenses ($1,631.06): $1,012,709.87.
                                          As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
                                          petitioner and the Pennsylvania Department of Public Welfare as reimbursement of the state's Medicaid lien: $58,753.56.
                                          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.
                                          In respondent's discretion items denoted with "M" payable in 12 monthly installments summing to the annual amount indicated.
                                                     Appendix A: Items of Compensation for Sarah Behie                                            Page 3 of 4



                                          Compensation   Compensation    Compensation   Compensation   Compensation    Compensation   Compensation
 ITEMS OF COMPENSATION       G.R. * M       Year 16       Years 17-20      Year 21        Year 22       Years 23-41      Year 42      Years 43-Life
                                             2029         2030-2033         2034           2035         2036-2054         2055         2056-Life
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
Medicare Part B Deductible   5%   *
Medigap F                    5%               2,544.00       2,544.00        2,544.00       2,544.00       2,544.00        2,268.00       2,268.00
Medicare Part D              5%       M       1,974.86       1,974.86        1,974.86       1,974.86       1,974.86        1,974.86       1,974.86
OTC Meds                     4%                 242.22         242.22          242.22         242.22         242.22          242.22         242.22
Rheumatology                 5%   *
Kidney Specialist            5%   *
Neurology                    5%   *
Nutritionist                 4%   *
Counseling                   4%   *
Rehab                        4%   *
Orthotics                    4%   *
Finger Splints               4%   *
Manual WC                    4%                 895.00                         895.00         179.00         179.00          179.00         179.00
Gel Seat for WC              4%                  27.50          27.50           27.50          27.50          27.50           27.50          27.50
Power WC                     4%   *
Battery Repl                 4%   *
Power WC Maint               4%   *
Seated Wheeled Walker        4%                  17.89          17.89           17.89          17.89          17.89           17.89          17.89
Adj Bed                      4%
PT Equip                     4%                                                               584.60          58.46           58.46
Zipper Pull/ Hook            4%                   3.10           3.10            3.10           3.10           3.10            3.10           3.10
Universal Cuff               4%                  11.93          11.93           11.93          11.93          11.93           11.93          11.93
Medical Stockings            4%                  63.96          63.96           63.96          63.96          63.96           63.96          63.96
Reacher                      4%                   4.18           4.18            4.18           4.18           4.18            4.18           4.18
ADL                          4%                  50.00          50.00           50.00          50.00          50.00           50.00          50.00
Bath Chair                   4%   *
Raised Toilet Seat           4%                   7.44           7.44            7.44           7.44           7.44            7.44           7.44
Moist Heat Mitt              4%                  36.60          36.60           36.60          36.60          36.60           36.60          36.60
Microsoft Surface            4%
                                                       Appendix A: Items of Compensation for Sarah Behie                                                   Page 4 of 4



                                          Compensation     Compensation    Compensation     Compensation    Compensation     Compensation    Compensation
 ITEMS OF COMPENSATION         G.R. * M     Year 16         Years 17-20      Year 21          Year 22        Years 23-41       Year 42       Years 43-Life
                                             2029           2030-2033         2034             2035          2036-2054          2055          2056-Life
Dragon Naturally Speaking      4%                20.00             20.00          20.00            20.00            20.00           20.00            20.00
Home Care                      4%    M       29,640.00        29,640.00       29,640.00        29,640.00       29,640.00        29,640.00       29,640.00
Home Mods                      4%
Access Van                     4%                                                               42,560.00         4,256.00        4,256.00         4,256.00
Case Mngt                      4%
Lost Earnings
Pain and Suffering
Past Unreimbursable Expenses
Medicaid Lien
Annual Totals                                 36,797.48        35,902.48       36,797.48        79,226.08       40,395.94        40,119.94       40,061.48
                                          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 ($49,355.06), lost earnings ($711,723.75), pain and suffering ($250,000.00), and past unreimbursable
                                          expenses ($1,631.06): $1,012,709.87.
                                          As soon as practicable after entry of judgment, respondent shall make the following payment jointly to
                                          petitioner and the Pennsylvania Department of Public Welfare as reimbursement of the state's Medicaid lien: $58,753.56.
                                          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.
                                          In respondent's discretion items denoted with "M" payable in 12 monthly installments summing to the annual amount indicated.
