         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-0966V
                                     Filed: March 29, 2018
                                         UNPUBLISHED


    SARA DASHTY,
                                                             Special Processing Unit (SPU);
                        Petitioner,                          Damages Decision Based on Proffer;
    v.                                                       Influenza (Flu) Vaccine; Complex
                                                             Regional Pain Syndrome (“CRPS”)
    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.


Kevin George Liebeck, Hodes Milman Liebeck, LLP, Irvine, CA, for petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

        On September 3, 2015, Sara Dashty (“petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§ 300aa-10, et seq.,2 (the “Vaccine Act” or “Program”). Petitioner alleges that as a
result of receiving an influenza (“flu”) vaccine on October 30, 2013, she suffered various
injuries, including limited movement of her left arm and chronic regional pain syndrome
(“CRPS”). See generally Petition. The case was assigned to the Special Processing
Unit (“SPU”) of the Office of Special Masters.

        On February 5, 2016, a ruling on entitlement was issued, finding petitioner
entitled to compensation for CRPS. On March 28, 2018, respondent filed a Proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded a lump sum
of $349,264.08 and an amount sufficient to purchase the annuity contract described in
section II.B of the proffer. Proffer at 4. In the Proffer, respondent represented that

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.

2National 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).
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 the following:

    1. A lump sum payment of $349,264.08 in the form of a check payable to
       petitioner, Sara Dashty, which represents compensation for life care
       expenses expected to be incurred during the first year after judgment
       ($16,884.47); lost future earnings ($111,303.33); actual and projected pain
       and suffering, with the amount for projected pain and suffering having
       been reduced to net present value ($220,576.28); and past unreimbursable
       expenses ($500.00), and

    2. An amount sufficient to purchase the annuity contract described in section
       II.B of the Proffer.

These amounts represent compensation for all damages that would be available under
§ 300aa-15(a).

       The clerk of the court is directed to enter judgment in accordance with this
decision.3

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          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


SARA DASHTY,

                Petitioner,                               No. 15-966V
                                                          Chief Special Master Dorsey
v.                                                        ECF

SECRETARY OF HEALTH AND
HUMAN SERVICES,

                Respondent.


              RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

        On February 5, 2016, respondent filed a Rule 4(c) Report conceding that petitioner was

entitled to compensation for her vaccine-related injuries, including but not limited to complex

regional pain syndrome. For the purposes of this proffer, the term “vaccine related” is as

described in the Rule 4(c) Report.

I.      Items of Compensation

        A.      Life Care Items

        Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLP, and petitioner

engaged Kelly Nasser, RN, GNP, CNLP, to provide an estimation of Sara Dashty’s future

vaccine-injury related needs. 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 Sara Dashty, attached hereto as Tab A. 1 Respondent proffers that Sara Dashty

should be awarded all items of compensation set forth in the life care plan and illustrated by the


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-
chart attached at Tab A. Petitioner agrees.

          B.     Lost Future Earnings

          The parties agree that based upon the evidence of record, Sara Dashty will suffer a loss of

earnings in the future. Therefore, respondent proffers that Sara Dashty should be awarded lost

future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Respondent

proffers that the appropriate award for Sara Dashty’s lost earnings is $111,303.33. Petitioner

agrees.

          C.     Pain and Suffering

          Respondent proffers that Sara Dashty should be awarded $220,576.28 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 Sara Dashty’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 $500.00.

II.       Form of the Award

          The parties recommend that the compensation provided to Sara Dashty 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: 2


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.

                                                   -2-
           A. Lump Sum Payment

       A lump sum payment of $349,264.08, representing compensation for life care expenses

expected to be incurred during the first year after judgment ($16,884.47), lost future earnings

($111,303.33), pain and suffering ($220,576.28), and past unreimbursable expenses ($500.00), in

the form of a check payable to petitioner, Sara Dashty.

           B. Future Annuity Payments

       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, Sara Dashty,

only so long as Sara Dashty 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,




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-
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, Sara Dashty, 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 Sara Dashty’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, Sara Dashty: $349,264.08

        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 System of Records, No. 09-15-0056.
                                                     -4-
                              Respectfully submitted,

                              CHAD A. READLER
                              Acting Assistant Attorney General

                              C. SALVATORE D’ALESSIO
                              Acting Director
                              Torts Branch, Civil Division

                              CATHARINE E. REEVES
                              Deputy Director
                              Torts Branch, Civil Division

                              ALEXIS BABCOCK
                              Assistant Director
                              Torts Branch, Civil Division

                              s/Adriana Teitel
                              ADRIANA TEITEL
                              Trial Attorney
                              Torts Branch, Civil Division
                              U. S. Department of Justice
                              P.O. Box l46, Benjamin Franklin Station
                              Washington, D.C. 20044-0146
                              Direct dial: (202) 616-3677

Dated: March 28, 2018




                        -5-
                                                  Appendix A: Items of Compensation for Sara Dashty                                       Page 1 of 2

                                          Lump Sum
                                         Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R.         *   M   Year 1      Years 2-4     Year 5       Year 6      Years 7-10    Year 11      Year 12    Years 13-Life
                                            2018       2019-2021      2022         2023       2024-2027      2028         2029       2030-Life
Kaiser MOP                    5%            1,500.00      1,500.00
Medicare Part B               5%                                      1,608.00     1,608.00      1,608.00    1,608.00     1,608.00      1,608.00
Medigap C                     5%       M                              1,877.76     1,877.76      1,877.76    1,877.76     1,877.76      1,877.76
Medicare Part D               5%       M                                752.28       752.28        752.28      752.28       752.28        752.28
Primary Care                  5%   *
Pain Mngt                     5%   *
Psychiatrist                  5%   *
Counseling                    4%   *
Lab Testing                   4%   *
Duloxetine                    5%   *
Ibuprofen                     5%   *
PT Eval                       4%   *                                                                                             150.00            150.00
PT                            4%   *                                                                                           2,011.92            670.64
OT Eval                       4%   *
OT                            4%   *                                                                                           1,350.32            675.00
Injections                    5%   *
Hand Held Shower              4%                 34.54         6.91          6.91          6.91           6.91        6.91        6.91               6.91
Shower Transfer Bench         4%                 95.00        19.00         19.00         19.00          19.00       19.00       19.00              19.00
Bed Cane                      4%                 70.00        14.00         14.00         14.00          14.00       14.00       14.00              14.00
Heating Pad                   4%                 36.00        18.00         18.00         18.00          18.00       18.00       18.00              18.00
TENS Unit                     4%   *
Grab Bars                     4%                139.98        20.00         20.00         20.00          20.00       20.00       20.00              20.00
Wedge Pillows                 4%                 42.00        21.00         21.00         21.00          21.00       21.00       21.00              21.00
Adaptive Bathroom & Kitchen
Equip                         4%                200.00        40.00         40.00         40.00          40.00        40.00      40.00              40.00
Lift Chair                    4%                369.00        52.71         52.71         52.71          52.71        52.71      52.71              52.71
Car Mods                      4%                 22.95                                    22.95                       22.95
Home Health Aide              4%       M     11,700.00    18,200.00     18,200.00     18,200.00       18,200.00   18,200.00   18,200.00         18,200.00
Ancillary Services            4%       M      2,400.00     2,400.00      2,400.00      2,400.00        2,400.00    2,400.00    2,400.00          2,400.00
Driver's Eval                 4%                275.00                                   275.00                      275.00
Lost Future Earnings                        111,303.33
                                                 Appendix A: Items of Compensation for Sara Dashty                                                       Page 2 of 2

                                        Lump Sum
                                       Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R.     *   M      Year 1     Years 2-4     Year 5       Year 6      Years 7-10    Year 11      Year 12    Years 13-Life
                                           2018      2019-2021      2022         2023       2024-2027      2028         2029       2030-Life
Pain and Suffering                       220,576.28
Past Unreimbursable Expenses                 500.00
Annual Totals                            349,264.08        22,291.62       25,029.66        25,327.61       25,029.66        25,327.61       28,541.90         26,525.30
                                       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 ($16,884.47), lost future earnings ($111,303.33), pain and suffering ($220,576.28), and past unreimbursable
                                       expenses ($500.00): $349,264.08.
                                       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.
