# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15 -0966V

Filed: March 29, 2018

UNPUBLISHED

SARA DASHTY

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Special Processing Unit (SPU);

Damages Decision Based on Proffer;

Influenza (Flu) Vaccine; Complex

Regional Pain Syndrome (“CRPS”)

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 DAMAGES 1



### 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

a ward 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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.

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 subpara graph of 42 U.S.C.

§ 300aa (2012 ).2



### 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

exp enses 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.- 1

- 

## IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

SARA DASHTY

,

Petitioner

,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. No. 15-966V

Chief Special Master Dorsey

ECF

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 pet itioner

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 fro m 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

- 

### 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 l ost

future earnings as provided under the Vaccine A ct, 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 h er vaccine-related injury. Respondent proffers that

petitioner should be awarded past unreimbursable expenses in the amount of $500.00.

II. Form of the A ward

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 M aster’s decision and the Court’ s judgme nt award the

following: 2

2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for

ap propriate relief. In particular, respondent would oppose any award for future medical expenses, future

lost earnings, and future pain and suffering

.- 3

- 

### A. Lump S um 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 sufferin g ($220,576.28) , and past unreimbursable expenses ($ 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 p rovide 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 firs t 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.- 4

- 

### 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 nonmedical life care items, and a five percent (5%) growth rate shoul d 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, a nd 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 adu lt. 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.- 5

- 

### Respectfully submitted,

CHAD A. READLER

Acting Assistant Attorney General

C. SALVATORE D’ALESSIO

Acting Director

Torts Branch, Civil Division

CATHARINE E. REEVES

Deputy Di rector

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. Departmen t of Justice

P.O. Box l46, Benjamin Franklin Station

Washington, D.C. 20044-0146

Direct dial: (202) 616-3677

Dated: March 28, 2018Appendix A: Items of Compensation for Sara DashtyPage 1 of 2ITEMS OF COMPENSATION G.R. * MLump SumCompensationYear 1CompensationYears 2-4CompensationYear 5CompensationYear 6CompensationYears 7-10CompensationYear 11CompensationYear 12CompensationYears 13-Life2018 2019-2021 2022 2023 2024-2027 2028 2029 2030-LifeKaiser MOP5%1,500.001,500.00Medicare Part B5%1,608.001,608.001,608.001,608.001,608.001,608.00Medigap C5% M1,877.761,877.761,877.761,877.761,877.761,877.76Medicare Part D5% M752.28752.28752.28752.28752.28752.28Primary Care5% *Pain Mngt5% *Psychiatrist5% *Counseling4% *Lab Testing4% *Duloxetine5% *Ibuprofen5% *PT Eval4% *150.00150.00PT4% *2,011.92670.64OT Eval4% *OT4% *1,350.32675.00Injections5% *Hand Held Shower4%34.546.916.916.916.916.916.916.91Shower Transfer Bench4%95.0019.0019.0019.0019.0019.0019.0019.00Bed Cane4%70.0014.0014.0014.0014.0014.0014.0014.00Heating Pad4%36.0018.0018.0018.0018.0018.0018.0018.00TENS Unit4% *Grab Bars4%139.9820.0020.0020.0020.0020.0020.0020.00Wedge Pillows4%42.0021.0021.0021.0021.0021.0021.0021.00Adaptive Bathroom & KitchenEquip4%200.0040.0040.0040.0040.0040.0040.0040.00Lift Chair4%369.0052.7152.7152.7152.7152.7152.7152.71Car Mods4%22.9522.9522.95Home Health Aide4% M 11,700.0018,200.0018,200.0018,200.0018,200.0018,200.0018,200.0018,200.00Ancillary Services4% M 2,400.002,400.002,400.002,400.002,400.002,400.002,400.002,400.00Driver's Eval4%275.00275.00275.00Lost Future Earnings111,303.33Appendix A: Items of Compensation for Sara DashtyPage 2 of 2ITEMS OF COMPENSATION G.R. * MLump SumCompensationYear 1CompensationYears 2-4CompensationYear 5CompensationYear 6CompensationYears 7-10CompensationYear 11CompensationYear 12CompensationYears 13-Life2018 2019-2021 2022 2023 2024-2027 2028 2029 2030-LifePain and Suffering220,576.28Past Unreimbursable Expenses500.00Annual Totals349,264.0822,291.6225,029.6625,327.6125,029.6625,327.6128,541.9026,525.30Note: 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 careexpenses ($16,884.47), lost future earnings ($111,303.33), pain and suffering ($220,576.28), and past unreimbursableexpenses ($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.