                  In the United States Court of Federal Claims
                                      OFFICE OF SPECIAL MASTERS
                                              No. 17-975V

*************************
                            *                                     Chief Special Master Corcoran
JEFFREY BRADEN,             *
                            *
                Petitioner, *                                     Filed: March 27, 2020
                            *
          v.                *
                            *                                     Decision by Stipulation; Damages;
SECRETARY OF HEALTH         *                                     Small Fiber Polyneuropathy;
AND HUMAN SERVICES,         *                                     Influenza Vaccine.
                            *
                Respondent. *
                            *
*************************


David Michael Zevan, Zevan Davidson Roman, LLC, St. Louis, MO, for Petitioner.

Traci R. Patton, U.S. Dep’t of Justice, Washington, D.C., for Respondent.

                                   DECISION AWARDING DAMAGES 1

        On July 20, 2017, Jeffrey Braden filed a petition seeking compensation under the National
Vaccine Injury Compensation Program (“Vaccine Program”). 2 Petitioner alleges that he suffered
from small fiber polyneuropathy as a result of his September 22, 2014 receipt of the influenza
(“flu”) vaccine. Moreover, Petitioner alleges that he experienced residual effects of this injury for
more than six months.




1
  Because this Decision contains a reasoned explanation for my actions in this case, I will 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 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain
kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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). Otherwise, the whole Decision will
be available to the public. Id.
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
         Respondent denies that the flu vaccine caused Petitioner to suffer small fiber
polyneuropathy. Nonetheless both parties, while maintaining their above-stated positions, agreed
in a stipulation (filed on February 27, 2020) that the issues before them could be settled, and that
a decision should be entered awarding Petitioner compensation.

        I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
(as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the
terms set forth therein.

         The stipulation awards:

         •   A lump sum of $407,796.89 in the form of a check payable to Petitioner; and

         •   An amount sufficient to purchase an annuity contract as described in Paragraphs 9–11
             of the parties’ stipulation (as attached hereto).

Stipulation at 2–5. This amount represents compensation for all damages that would be available
under Section 15(a) of the Act.

        I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the Court is directed to enter judgment herewith. 3


         IT IS SO ORDERED.

                                                                       /s/ Brian H. Corcoran
                                                                          Brian H. Corcoran
                                                                          Chief Special Master




3
 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.

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           Case 1:17-vv-00975-UNJ Document 38 Filed 02/27/20 Page 1 of 8




                  IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                            OFFICE OF SPECIAL MASTERS

                                                )
JEFFREY BRADEN                                  )
                                                )
                       Petitioner,              )
     v.                                         )
                                                )               No. 17-975V
SECRETARY OF HEALTH                             )               Chief Special Master Corcoran
AND HUMAN SERVICES                              )               ECF
                                                )
                      Respondent.               )


                                           STIPULATION

          The parties hereby stipulate to the following matters:

          I. Jeffrey Braden, petitioner, filed a petition for vaccine compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l Oto -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 vaccination on or about September 22, 2014.

          3. The vaccination was administered within the United States.

          4. Petitioner alleges that he suffered from small fiber polyneuropathy as a result of

receiving the flu vaccine, and that he experienced the residual effects of this 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 small fiber

polyneuropathy or any other injury or his current condition.
        Case 1:17-vv-00975-UNJ Document 38 Filed 02/27/20 Page 2 of 8




       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-2 l(a)(I ), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

       a.      A lump sum of $407,796.89, which amount represents compensation for first year
               life care expenses ($32,796.89), and combined lost earnings, pain and suffering
               and past unreimbursable expenses ($375,000.00) in the form of a check payable to
               petitioner;

       b.      An amount sufficient to purchase the annuity contract described in paragraph I 0
               below, paid to the life insurance company from which the annuity will be
               purchased (the "Life Insurance Company").

       These amounts represent compensation for all damages that would be available under 42
U.S.C. §300aa-l 5(a).

       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, Aa I, 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.


       I 0. The Secretary of Health and Human Services agrees to purchase an annuity contract

from the Life Insurance Company for the benefit of petitioner, Jeffrey Braden, pursuant to which

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        Case 1:17-vv-00975-UNJ Document 38 Filed 02/27/20 Page 3 of 8




the Life Insurance Company wi ll agree to make payments periodically to petitioner as follows

for all other damages that would be available under 42 U.S.C. §300aa-l 5(a).

       a.     For future unreimbursable Medicare Part B Premium, Medigap C, and Medicare
              Part D expenses, beginning on the first anniversary of the date of judgment, an
              annual amount of $6.051.30 to be paid up to the anniversary of the date of
              judgment in year 2024. Thereafter, beginning on the anniversary of the date of
              judgment in year 2024, an annual amount of $3,717.18 to be paid for the
              remainder of petitioner's life, all amounts increasing at the rate of five percent
              (5%), compounded annually from the date of judgment.

       b.     For future unreimbursable Gym Membership expenses, beginning on the first
              anniversary of the date of judgment, an annual amount of $600.00 to be paid up to
              the anniversary of the date of judgment in year 2024. Then, beginning on the
              anniversary of the date of judgment in year 2024, an annual amount of $540.00 to
              be paid up to the anniversary of the date of judgment in year 2032, all amounts
              increasing at the rate of three percent (3%), compounded annually from the date
              of judgment.

       c.     For future unreimbursable Reacher, Raised Toilet Seat, Cane, Wheeled Walker,
              Hand Held Shower, Shower Chair, Cushion, Scooter Battery, Scooter
              Maintenance, Lifeline, and Portable Grab Bar expenses, beginning on the first
              anniversary of the date of judgment, an annual amount of $674.43 to be paid for
              the remainder of petitioner's life, increasing at the rate of three percent (3%),
              compounded annually from the date of judgment.

       d.     For future unreimbursable Podiatrist, Depends, Bio Freeze, Nuturna, Ibuprofen,
              Driver's Evaluation, and Hand Control expenses, beginning on the first
              anniversary of the date of judgment, an annual amount of $4,052.49 to be paid for
              the remainder of petitioner's life, increasing at the rate of three percent (3%),
              compounded annually from the date of judgment.

       e.     For future unreimbursable Scooter expenses, on the anniversary of the date of
              judgment in year 2027, a lump sum of$1,929.00. Thereafter, beginning on the
              anniversary of the date of judgment in year 2028, an annual amount of $275.57 to
              be paid for the remainder of petitioner's life, all amounts increasing at the rate of
              three percent (3%), compounded annually from the date of judgment.

       f.     For future unreimbursable Scooter Lift and Li ft Chair expenses, on the
              anniversary of the date of judgment in year 2030, a lump sum of $2,348.00.
              Thereafter, beginning on the anniversary of the date of judgment in year 2031, an
              annual amount of $234.80 to be paid for the remainder of petitioner's life, all
              amounts increasing at the rate of three percent (3%), compounded annually from
              the date of judgment.



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        Case 1:17-vv-00975-UNJ Document 38 Filed 02/27/20 Page 4 of 8




       g.       For future unreimbursable Home Health Care expenses, beginning on the first
               anniversary of the date of judgment, an annual amount of $8,320.00 to be paid up
               to the anniversary of the date of judgment in year 2029. Then, beginning on the
               anniversary of the date of judgment in year 2029, an annual amount of $12,480.00
               to be paid up to the anniversary of the date of judgment in year 2039. Thereafter,
               beginning on the anniversary of the date of judgment in year 2039, an annual
               amount of $14,352.00 to be paid for the remainder of petitioner's Ii fe, al I amounts
               ncreasing at the rate of three percent (3%), compounded annually from the date of
               judgment.

       h.      For future unreimbursable Ancillary Service expenses, beginning on the first
               anniversary of the date of judgment, an annual amount of $1,400.00 to be paid up
               to the anniversary of the date of judgment in year 2042, increasing at the rate of
               three percent (3%), compounded annually from the date of judgment.

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

forth in paragraph IO 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, Jeffrey Braden, 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 petitioner's death.

       11. The annuity contracts 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




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         Case 1:17-vv-00975-UNJ Document 38 Filed 02/27/20 Page 5 of 8




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)(I ), 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.

        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-l 5(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-l 5(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 pa1t of the annuity contract, will be used

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

l 5(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa- I 5(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



                                                   5
         Case 1:17-vv-00975-UNJ Document 38 Filed 02/27/20 Page 6 of 8




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. § 300 aa-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 September 22, 2014,

as al leged by petitioner in a petition for vaccine compensation filed on or about July 20, 2017, in

the United States Court of Federal Claims as petition No. I 7-975V.

        17. If petitioner should die prior to entry ofjudgment, 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 I2 above. There is absolutely no agreement on the patt of the

patties 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.



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        Case 1:17-vv-00975-UNJ Document 38 Filed 02/27/20 Page 7 of 8




       20. Petitioner hereby authorizes respondent to disclose documents tiled 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 small fiber

polyneuropathy or any other injury or his current condition.

       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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                    Case 1:17-vv-00975-UNJ Document 38 Filed 02/27/20 Page 8 of 8




Respectfully submitted.

PETITIONER:




                                                                        y Director
                                                                  Torts Branch
                                                                  Civil Division
                                                                  U.S. Department of Justice
                                                                  P.O. Box 146
                                                                  Benjamin Franklin Station
                                                                  Washington. DC 20044-0146


AUTHORIZED REPRESENTATIVE                                         ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH                                        RESPONDENT:
AND HUMAN.SERVICES:



TAMARA OVERBY                                                     ~-~
                                                                  TRACI R. PATON
Acting Director, Division of Injury
                                                                  Senior Trial Attorney
Compensation Programs Healthcare
                                                                  Torts Branch
Systems Bureau
                                                                  Civil Division
U.S. Department of Health
and Human Services                                                U.S. Department of Justice
5600 Fishers Lane                                                 P.O. Box 146
Parklawn Building. Mail Stop 11 C-26                              Benjamin Franklin Station
Rockville. MD 20857                                               Washington, DC 20044-0146
                                                                  Tel: (202) 353-1589



Dated:          f"t,J,.        '17, 2.!n-1>



                                                              8


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