        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 15-1493V
                                      Filed: May 19, 2017
                                        UNPUBLISHED

****************************
JANE M STUART,                          *
                                        *
                    Petitioner,         *        Joint Stipulation on Damages;
v.                                      *        Influenza (“Flu”) vaccine; Guillain-
                                        *        Barré Syndrome (“GBS”); Special
SECRETARY OF HEALTH                     *        Processing Unit (“SPU”)
AND HUMAN SERVICES,                     *
                                        *
                    Respondent.         *
                                        *
****************************
William E. Cochran, Jr., Black McLaren, et al., PC, Memphis, TN, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

       On December 9, 2015, Jane M. Stuart (“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 she suffered from
Guillain-Barré syndrome (“GBS”) caused by an influenza (“flu”) vaccine she received on
October 30, 2014. Petition at 1; Stipulation, filed May 17, 2017, at ¶ 4. Petitioner
further alleges that she experienced the residual effects of this condition for more than
six months. Petition at 9-10; Stipulation at ¶ 4. “Respondent denies that the flu vaccine
caused petitioner to suffer from GBS or any other injury.” Stipulation at ¶ 6.

      Nevertheless, on May 17, 2017, the parties filed the joint stipulation (attached as
Appendix A), stating that a decision should be entered awarding compensation. The
undersigned finds the stipulation reasonable and adopts it as the decision of the Court
in awarding damages, on the terms set forth therein.

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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
        The parties stipulate that petitioner shall receive the following compensation:

        a. A lump sum of $228,004.29 which amount represents compensation for
           the first year life care expenses ($32,416.16), pain and suffering
           ($190,000.00), and past unreimbursable expenses ($5,588.13), 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 attached Stipulation, paid to the life insurance
           company from which the annuity will be purchased. Stipulation at ¶ 8.
           These amounts represent compensation for all items of damages that would
           be available under 42 U.S.C. § 300aa-15(a). Id.

       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

                                                   )
JA   EM. STUA RT.                                  )
                                                   )
                        Petitioner.                )
      V.                                           )
                                                   )                o. 15- 1493V
 EC RETARY OF HEALTH                               )               Chief pecial Master Dorsey
A D HUMA SE RV ICE                                )
                                                  )
                       Respondent.                )
~~~~~~~~~~~~~~~)

                                             STIPULATION

           The parties hereby stipu late to the fo llowing matters:

           I. Jane M. Stuart. petitioner. fil ed a petitio n for vaccine compensation under the      ali onal

V accine Injury Compensati on Program. 42 U.S.C. ~~ 300aa- I 0 to - 34 (the ··vaccine Program.. ).

The petition seeks compensation for injurie alleged ly re lated to petitioner" s receipt of the

influenza (""flu ..) vaccine. w hich vaccine is contained in the Vaccine Injury Table (the ·Table"").

42 C.F. R. § I 00.3 (a).

           2. Petitioner rece ived the nu vacc ine on or about October 30. 20 14.

           3. The vaccination was administered w ithin the United States.

           4. Petitioner alleges that she suffered from G uillai n-Barrc yndrome ( .. GB ..) as a result

o f receiv ing the nu vaccine. and furth er all eges that she ex perienced the res idual cf"lects of thi s

condition for more than six month s.

           5. Petitio er represents that there has been no prior award or sett lement o f a civil action

for damages o n her behal f as a resu lt o f her condition.

           6. Responden t denies that the flu vaccin e caused petitioner to suffer from GBS or any

other injury.
        7. M aintaining their above-stated positi ons. the parties neverth eless now agree that the

issues between them shal I be settled and that a deci sion should be en tered awarding the

compensat ion described in paragraph 8 o f thi s tipulation.

        8. As soon as practicable after an entry ofjud gment refl ectin g a decision consistent with

the term s o f thi s Stipu lation. and after petitioner ha fi led an elect ion to receive compensati on

pursuant to 42 U.S.C. § 300aa-2 I (a)( I ). the Secretary of Health and I luman Servi ces wi ll is ue

the fo ll ow ing vacc ine compensati on payments:

        a. A lump sum o f $228.004.29 wh ich amou nt represents compensation for first year life
        care expenses ($32.4 16. 16). pain and suffering ($ 190.000.00). and past unreimbursab lc
        expenses ($5.588. 13). in the form o r a check payab le to petitioner: and

        b. An amount sufficient to purchase the annuity contract descri bed in paragraph I 0
        be low. paid to the li fe insura nce company from w hi ch the annuity w ill be purchased
        (the .. Life Insuran ce Company ..).

        9. T he Life Insurance Company must have a minimum o f $250. 000.000 cap ital and

surplus. exc lusive o f any mandatory security va luation reserve. The Life Insurance Company

must have one of the fo ll owing rat ings from two o f the fo llowing rating o rganizations:

        a.      A.M. Best Company: A ++. A +. A+ g. A +p. A + r. or A +s:

        b.      Moody" s Investor Service C laim s Pay ing Rating: Aa3. Aa2. Aa I . or Aaa:

        c.      Standard and Poor" s Corporation Insurer C laims- Payin g Ability Rating: AA-.
                AA. AA+ . or AAA :

       d.       Fitch C red it Rating Compan y. Insurance Co mpany Claims Paying Ability Rat ing:
                AA-. AA. AA+ . or AAA.

        I 0. The Secretary of I lea lth and Human Servi ces agrees to purchase an annuity cont ract

from the L i fe Insurance Company fo r the benefit of petitioner, Jane M. Stuart. pursuant to which

the Life Insurance Company w ill agree to mak e payments peri od ically to petitioner as fo llows:




                                                    2
        a. For future unreimbursabl e Hea lth Alli ance Plan Maximum-out-of-p ocket expenses. on
        the first anni versary of the date of judgment. a lump sum of $7. 150.00. increasing at the
        rate o f five percent (5%). compounded annually from the date orj udgment.

        b. For future unreimbursable Medi care Part B Premium and Medi care Part D expenses.
        beginning on the ann iversary of the date of judgment in year 2023. an annual amount or
        $ 1,890.00 to be paid fo r the remainder of petiti oner' s life. increasing at the rate or fi ve
        percent (5%). compounded annuall y from the date ofjud gment.

        c. For futu re unreim bursable Med icare Part B Deductible. Primary Care Physic ian.
          euro logist. EMG, and Gabapentin expenses. beg inning on the anni versary of the date or
        judgment in year 2019. an annual amount of $3.5 05.46 to be paid up to the anniversary of
        the date of judgment in year 2023 . Therea fter. beg inning on the anniversary of the date
        of judgment in year 2023. an annual amount o f $280.73 to be paid for the remainder or
        petitioner' s life. all amounts increasin g at the rate of fi ve percent (5%). compounded
        annually from the date of j udgment.

        d. For future unreimbursable Whee led Walker. Hand Held hewer and Installati on. and
        Medica l Alert expenses. on the anni versary of the date of judgment in yea r 2023. a lum p
        sum of $866. 50. Therea fter. beginning on the anni versary of the date of judgment in year
        2024. an annual amount of$5 0 1.25 to be paid fo r the remainder of petiti oner' s life. all
        amounts increasing at the rate of four percent (4%). compounded annually from the date
        of j udgment.

       e. For future unreimbursable ShO\\ er Chair. Reacher. Bed Cane. Ancillary Service
       expenses. beginning on the first anni versary or th e date orjudgment. an annual amount or
       $2.872.82 to be paid up to the anni versary or the date orjudgment in year 2023. Then.
       beginning on the anniversary of the date or judgment in year 2023. an annual amount or
       $2.642.82 to be paid up to the anniversary of the date of judgment in year 2028.
       Therea ft er. beginning on the anni versa ry or the date ofju dgment in year 2028. an annual
       amount of $67.82 to be paid for the remainder of petitioner' s life. all amounts increasing
       at the rate of fo ur percent (4%). compounded annually from the date of judgment.

       f. For future unreim bursabl e Case Management expenses. on the first anniversary or the
       date of judgment, a lum p sum of $ 1.068.00. increasing at the rate of fo ur percent (4%).
       compounded annually from the date o r judgment.

At the sole di screti on of the ecretary or Hea lth and Human Services. the periodic payments set

fo rth in paragraph I0 above may be provided to petitioner in monthl y. quarterl y. annual or other

installments. T he ··annual amounts.. set fo rth above describe only the total yearl y sum to be paid

to petitioner and do not require that the payment be made in one annual in stallm ent. Petiti oner

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


                                                   3
she. Jane M . Stuart. is ali ve at the time that a parti cular payment is due. Written notice shall be

prov ided to the Secretary of Health and Human Serv ices and the Life Insurance Company w ithin

twenty (20) days of Jane M . tuart' s death .

         11 . T he annuity contract w ill be owned so lely and exclusively by the Secretary o f Hea lth

and Human Services and w ill be purchased as soon as practicable fo llowing the entry of a

judgment in confo rmi ty w ith th is tipu lati on. T he parti es stipulate and agree th at the Secretary

of H ealth and Hum an Services and the U nited States o f A meri ca are not responsibl e for the

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

award ed pursuant to paragraph 12 herein. and that they do not guarantee or insure any of the

futu re annuity payments. Upon the purchase o f the ann uity contract. the ecretary of Hea lth and

Human Serv ices and the U nited States o f Am eri ca are released from any and all ob ligati ons w ith

respect to future annuity payments.

        12. As soon as practicab le after the entry o rjudgment on entitlement in thi s case. and

after petitioner has fi led both a proper and tim ely election to receive compensation pu rsuant to

42 U .S.C. § 300aa-2 I (a)( I ). and an app lication. the parti es w i II submit to further proceed ings

before the spec ial master to award reasonable attorn eys· fees and costs incurred in proceeding

upon thi s petition.

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

kn own sources o f payment fo r item s o r services fo r which the Program is not primaril y liable

under 42 U.S.C. § 300aa- I 5(g). including State compensati on programs. insurance polic ie .

Federal or l ate health benefits programs (other than T itle X IX o f the ocial Security Ac t

(42 U.S.C. § 1396 et seq. )). or entities that provide hea lth services on a pre-paid bas is.




                                                     4
         14. Payments made pursuant to paragraph 8 and any amounts award ed pur uant to

paragraph 12 o f thi s Stipulation w ill be made in accord ance w ith 42 U .S.C. ~ 300aa- I 5(i ).

subj ect to the avai labi I ity of sufficient statuto ry fun ds.

         15. T he parti es and th ei r attorn eys furth er agree and stipulate that. except for any award

for attorneys· fees and litigation costs. and past unreim bursable ex penses. the money provided

pu rsuant to this Stipul atio n either immediately or as part of the annuity contract. w ill be used

so lely fo r petitioner' s benefit as contemplated by a strict construction o f 42 U.S.C. ~~ 300aa-

l 5(a) and (d). and subject to the conditions of 42 U.S.C. ~~ 300aa-1 5(g) and (h).

         16. In return fo r the payments descri bed in para graphs 8 and 12. petiti oner. in her

indi v idual capacity. and on behal f of her heirs. exec utors. admini strators. successors or assigns.

does fo rever irrevocab ly and unconditi onal ly release. acquit and discharge the United States and

the Secretary of Hea lth and Hum an Services from any and all acti on or ca uses o f action

( includ ing agreements. judgments. claims. damages. loss or serv ices. expenses and all demands

o f w hatever k ind or nature) that have been brought. could have been brought. or could be timely

brought in the Court of Federal C laim s. under the          at ional Vacci ne Inj ury Compensation

Program. 42 U.S.C. ~ 300 aa- 10 et seq .. on account o l: o r in any way grow ing out o C any and all

known or unknown. suspected or unsuspected personal injuri es to or death of petiti oner resulting

from. or alleged to have resulted from. the flu vacc inati on admini stered on o r about October 30.

20 14. as alleged by petitio ner in a petition for vacc ine compensation fi led on or about December

9. 20 15. in the United States Court o f Federal Claims as petition        o. 15-1493 Y.

        17. I f petitioner should d ie prior to entry o f j udgment. this agreement shall be voidable

upon proper not ice to the Court on behalf o f either or both of the parties.




                                                        5
        18. If the spec ial master fa il s to issue a dec ision in compl ete confo rmity with the term s

of thi s St ipulation or ifthe Court of Federal Claim s fa ils to enter judgment in conformity with a

decision that is in complete conformity with the terms of th is Stipulation. then the parties·

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

        19. Thi s Stipu lation expresses a full and complete negoti ated settlement of Iiabi lity and

damages claimed und er the National Childhood Vaccine Injury Act of 1986. as amended. except

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

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

and clea rly agreed to . T he parties further agree and understand that the award described in th is

Stipulati on may reflect a compromise of the parti es· respective positions as to Iiabi Iity and/or

amount of damages. and furth er. that a change in the nature of the injury or condition or in the

items of compensation sought. is not grounds to mod ify or rev ise this agreement.

        20. Petiti oner hereby authorizes respondent to disc lose documents fil ed by petitioner in

this case consistent with the Privacy Act and the routine uses described in the National Vacc ine

Injury Compensat ion Program System of Records. No . 09- 15-0056.

        21. This Stipulati on shall not be construed as an admission by the Un ited States or the

Secretary of Hea lth and Human Services that the flu vaccine caused petitioner"s GBS or any

other injury.

        22. Al l rights and obli gations of petitioner hereunder shall apply equally to petitioner·s

heirs. executors. ad ministrators. successors, and/or assigns.

                                      END OF STIPULATION
I
I
I
I

                                                    6
May 151712:14 p                     American Dismantler                                                                                      313 579-1 577   p.8




               Respectfully submitted,




               ATTORNE Y OF RECORD FOR                                                                                 AUTHORIZED REPRESENTATIVE


           . J/JL!            ~
               PETITIONER:                                                                                             OF THE ATTORNEY GENERAL:



                                                                                                                                RINE E. REEVES
                                                                                                                             y D irector.
                                                                                                                       T orts Branch
                                                                                                                       Civil Division
                                                                                                                       U.S . .Department of Justice
                                                                                                                       P .O. Box. 146
                                                                                                                       Benjamin Franklin Station
                                                                                                                       Washington , DC 20044-0146



           AUTHORI ZED REPRESkN TATIVE                                                                                   ATTORNE Y OF RECORD FOR
           OF THE SECRE:C:AAY O~ HEALTH                                                                                .·RESPONDENT:
           AND B)J~~ ~RVICE~:
                                1l
                                    '                                    /                                    ,,
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                        ....    /         .."   !   ~       _, ..../!        __...."' _...... .        •
           I     ,.-'          .'       / •             /          ~                ;::--(./."l,.. /

          NA.AA'Y '. ~  A
          Division of njury                                                                                            Senior Trial Attorney
          Compensati on Programs                                                                                       Torts Branch
          Healthcare Systems Bureau                                                                                    C ivil D ivision
          U.S. Department of Health                                                                                    U.S. Department of Justice
          and Human Services                                                                                           P.O. Box 146
          5600 Fishers Lane                                                                                            Benjamin Franklin Station
          Parklawn Building, Mail Stop i 1C-26                                                                         Washington , DC 20044-0146
          Ro ckv ille, MD 20857                                                                                        Tel: (202) 6l6-4357



          Dated:




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