         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 15–1115V
                                      Filed: July 13, 2017
                                        UNPUBLISHED


    JAMES A. GUSTAFSON,
                                                             Special Processing Unit (SPU); Joint
                        Petitioner,                          Stipulation on Damages; Influenza
    v.                                                       (Flu) Vaccine; Guillain-Barre
                                                             Syndrome (GBS)
    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.


Allen Howard Adger, Allen H. Adger, P.C., Basalt, Colorado, for petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On October 5, 2015, 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”). Petitioner alleges that he suffered Guillain-Barre Syndrome (“GBS”)
caused-in-fact by his influenza (“flu”) vaccine administered on November 17, 2013.
Petition at 1; Stipulation, filed July 12, 2017, at ¶ 2, 4. Petitioner further alleges that he
received his vaccination in the United States, and that he suffered the sequela of his
injury for more than six months. Petition at ¶¶ 2, 18; Stipulation at ¶¶ 3, 4.
“Respondent denies that the flu vaccine caused petitioner to suffer from GBS or any
other injury, or his current condition.” Stipulation at ¶ 6.

       Nevertheless, on July 12, 2017, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. The undersigned


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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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 subparagraph of 42 U.S.C. §
300aa (2012).
finds the stipulation reasonable and adopts it as the decision of the Court in awarding
damages, on the terms set forth therein.

     Pursuant to the terms stated in the attached Stipulation, the undersigned
awards the following compensation:

        a. A lump sum of $509,552.31, which amount represents compensation for first
        year life care expenses ($226,434.32), lost earnings ($70,000.00), pain and
        suffering ($210,000.00), and past unreimbursable expenses ($3,117.99), in the
        form of a check payable to petitioner; and

        b. An amount sufficient to purchase the annuity contract described in paragraph
        10 of the Stipulation, paid to the life insurance company from which the annuity
        will be purchased (the “Life Insurance Company”).

Stipulation at ¶ 8.

       The undersigned approves the requested amount for petitioner’s compensation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, 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
____________________________________
                                      )
JAMES A. GUSTAFSON,                   )
                                      )
                 Petitioner,          )
    v.                                )
                                      )        No. 15-1115V
SECRETARY OF HEALTH                   )        Chief Special Master Dorsey
AND HUMAN SERVICES                    )
                                      )
                Respondent.           )
____________________________________)

                                         STIPULATION

       The parties hereby stipulate to the following matters:

       1. James A. Gustafson, petitioner, filed a petition for vaccine compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the “Vaccine

Program”). The petition seeks compensation for injuries allegedly related to petitioner’s receipt

of an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the

“Table”), 42 C.F.R. § 100.3 (a).

       2. Petitioner received his flu immunization on November 17, 2013.

       3. The vaccination was administered within the United States.

       4. Petitioner alleges that he subsequently suffered the injury Guillain-Barré Syndrome

(“GBS”), which petitioner alleges was caused-in-fact by his receipt of the influenza vaccine.

Petitioner further alleges that he experienced the residual effects of his injury for more than six

months.

       5. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on his behalf as a result of his condition.

       6. Respondent denies that the flu vaccine caused petitioner to suffer from GBS or any
other injury, or his current condition.

       7. Maintaining their above-stated positions, the parties nevertheless now agree that the

issues between them shall be settled and that a decision should be entered awarding the

compensation described in paragraph 8 of this Stipulation.

       8. As soon as practicable after an entry of judgment reflecting a decision consistent with

the terms of this Stipulation, and after petitioner has filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

       a. A lump sum of $509,552.31, which amount represents compensation for first year life
       care expenses ($226,434.32), lost earnings ($70,000.00), pain and suffering
       ($210,000.00), and past unreimbursable expenses ($3,117.99), in the form of a check
       payable to petitioner;

       b. An amount sufficient to purchase the annuity contract described in paragraph 10
       below, paid to the life insurance company from which the annuity will be purchased
       (the “Life Insurance Company”).

       9. 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.

       10. The Secretary of Health and Human Services agrees to purchase an annuity contract

from the Life Insurance Company for the benefit of petitioner, James A. Gustafson, pursuant to

which the Life Insurance Company will agree to make payments periodically to petitioner as

                                                 2
follows:

       a. For future unreimbursable Medigap C and Medicare Part D expenses, beginning on
       the first anniversary of the date of judgment, an annual amount of $3,733.88 to be paid
       for the remainder of petitioner’s life, increasing at the rate of five percent (5%),
       compounded annually from the date of judgment.

       b. For future unreimbursable Independent Rehabilitation and Lifeline expenses,
       beginning on the first anniversary of the date of judgment, an annual amount of
       $1,559.40 to be paid for the remainder of petitioner’s life, increasing at the rate of four
       percent (4%), compounded annually from the date of judgment.

       c. For future unreimbursable Compression Stockings, Reacher, Raised Toilet Seat, Cane,
       Walker, Transfer Bench, and Melatonin expenses, on the first anniversary of the date of
       judgment, a lump sum of $394.24. Thereafter, beginning on the second anniversary of
       the date of judgment, an annual amount of $314.90 to be paid for the remainder of
       petitioner’s life, all amounts increasing at the rate of four percent (4%), compounded
       annually from the date of judgment.

       d. For future unreimbursable Scooter, Scooter Maintenance, Scooter Battery, and
       Scooter Lift expenses, on the anniversary of the date of judgment in year 2023, a lump
       sum of $4,036.48. Thereafter, beginning on the anniversary of the date of judgment in
       year 2024, an annual amount of $488.05 to be paid for the remainder of petitioner’s life,
       all amounts increasing at the rate of four percent (4%), compounded annually from the
       date of judgment.

       e. For future unreimbursable Home Health Care expenses, beginning on the anniversary
       of the date of judgment in year 2023, an annual amount of $16,380.00 to be paid up to the
       anniversary of the date of judgment in year 2026. Thereafter, beginning on the
       anniversary of the date of judgment in year 2026, an annual amount of $25,480.00 to be
       paid for the remainder of petitioner’s life, all amounts increasing at the rate of four
       percent (4%), compounded annually from the date of judgment.

       f. For future unreimbursable Ancillary Service expenses, beginning on the first
       anniversary of the date of judgment, an annual amount of $761.00 to be paid up to the
       anniversary of the date of judgment in year 2023, increasing at the rate of four percent
       (4%), compounded annually from the date of judgment.

       g. For future unreimbursable Primary Care Physician Mileage, Neurologist Mileage,
       Independent Rehabilitation Mileage, and Ophthalmologist Mileage expenses, beginning
       on the first anniversary of the date of judgment, an annual amount of $1,165.39 to be paid
       for the remainder of petitioner’s life, increasing at the rate of four percent (4%),
       compounded annually from the date of judgment.




                                                 3
At the sole discretion of the Secretary of Health and Human Services, the periodic payments set

forth in paragraph 10 above may be provided to petitioner in monthly, quarterly, annual or other

installments. The “annual amounts” set forth above describe only the total yearly sum to be paid

to petitioner and do not require that the payment be made in one annual installment. Petitioner

will continue to receive the annuity payments from the Life Insurance Company only so long as

he, James A. Gustafson, 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 James A. Gustafson’s death.

       11. The annuity contract will be owned solely and exclusively by the Secretary of Health

and Human Services and will be purchased as soon as practicable following the entry of a

judgment in conformity with this Stipulation. The parties stipulate and agree that the Secretary

of Health and Human Services and the United States of America are not responsible for the

payment of any sums other than the amounts set forth in paragraph 8 herein and the amounts

awarded pursuant to paragraph 12 herein, and that they do not guarantee or insure any of the

future annuity payments. Upon the purchase of the annuity contract, the Secretary of Health and

Human Services and the United States of America are released from any and all obligations with

respect to future annuity payments.

       12. As soon as practicable after the entry of judgment on entitlement in this case, and

after petitioner has filed both a proper and timely election to receive compensation pursuant to

42 U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceedings

before the special master to award reasonable attorneys’ fees and costs incurred in proceeding

upon this petition.




                                                 4
        13. Petitioner and his attorney represent that they have identified to respondent all

known sources of payment for items or services for which the Program is not primarily liable

under 42 U.S.C. § 300aa-15(g), including State compensation programs, insurance policies,

Federal or State health benefits programs (other than Title XIX of the Social Security Act

(42 U.S.C. § 1396 et seq.)), or entities that provide health services on a pre-paid basis.

        14. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to

paragraph 12 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i),

subject to the availability of sufficient statutory funds.

        15. The parties and their attorneys further agree and stipulate that, except for any award

for attorneys’ fees and litigation costs, and past unreimbursable expenses, the money provided

pursuant to this Stipulation either immediately or as part of the annuity contract, will be used

solely for petitioner’s benefit as contemplated by a strict construction of 42 U.S.C. §§ 300aa-

15(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa-15(g) and (h).

        16. In return for the payments described in paragraphs 8 and 12, petitioner, in his

individual capacity, and on behalf of his heirs, executors, administrators, successors or assigns,

does forever irrevocably and unconditionally release, acquit and discharge the United States and

the Secretary of Health and Human Services from any and all actions or causes of action

(including agreements, judgments, claims, damages, loss of services, expenses and all demands

of whatever kind or nature) that have been brought, could have been brought, or could be timely

brought in the Court of Federal Claims, under the National Vaccine Injury Compensation

Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all

known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting

from, or alleged to have resulted from, the flu vaccination administered on November 17, 2013,



                                                   5
as alleged by petitioner in a petition for vaccine compensation filed on or about October 5, 2015,

in the United States Court of Federal Claims as petition No. 15-1115V.

       17. If petitioner should die prior to entry of judgment, this agreement shall be voidable

upon proper notice to the Court on behalf of either or both of the parties.

       18. If the special master fails to issue a decision in complete conformity with the terms

of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a

decision that is in complete conformity with the terms of this Stipulation, then the parties’

settlement and this Stipulation shall be voidable at the sole discretion of either party.

       19. This Stipulation expresses a full and complete negotiated settlement of liability and

damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except

as otherwise noted in paragraph 12 above. There is absolutely no agreement on the part of the

parties hereto to make any payment or to do any act or thing other than is herein expressly stated

and clearly agreed to. The parties further agree and understand that the award described in this

Stipulation may reflect a compromise of the parties’ respective positions as to liability and/or

amount of damages, and further, that a change in the nature of the injury or condition or in the

items of compensation sought, is not grounds to modify or revise this agreement.

       20. Petitioner hereby authorizes respondent to disclose documents filed by 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.

       21. This Stipulation shall not be construed as an admission by the United States or the

Secretary of Health and Human Services that the flu vaccine caused petitioner’s GBS or any

other injury or his current condition.




                                                  6
       22. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s

heirs, executors, administrators, successors, and/or assigns.

                                    END OF STIPULATION
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