In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS

********************     *
MICHAEL GRESHAM and      *
ALLISON GRESHAM, as Parents,
                         *                         No. 18-1711V
Natural Guardians and Next Friends
                         *
Of A.K.G., a minor,      *
                         *                         Special Master Christian J. Moran
             Petitioner, *
                         *                         Filed: April 29, 2020
v.                       *
                         *
SECRETARY OF HEALTH      *                         Stipulation; influenza (“flu”) vaccine
AND HUMAN SERVICES,      *                         optic neuritis
                         *
             Respondent. *
******************** *

Susan M. Cremer, Law Offices of Michael Lawson Neff, PC, Atlanta, GA, for
Petitioners;
Claudia B. Gangi, United States Dep’t of Justice, Washington, DC, for
Respondent.

                             UNPUBLISHED DECISION1

       On April 28, 2020, the parties filed a joint stipulation concerning the petition
for compensation filed by Michael and Allison Gresham on behalf of their child,
A.K.G., on November 5, 2018. In their petition, petitioners alleged that A.K.G.
developed optic neuritis after receiving the influenza vaccine, which is contained
in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a), on December 29,
2015. Petitioners further allege that A.K.G. suffered the residual effects of this
injury for more than six months. Petitioners represent that there has been no prior


       1
         The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
award or settlement of a civil action for damages on his behalf as a result of his
condition.

      Respondent denies that the vaccine either caused A.K.G. alleged injury or
any other injury. Nevertheless, the parties agree to the joint stipulation, attached
hereto.

        Based upon the entire record in this case, the court finds that the settlement
is a fair, just and reasonable compromise of a disputed claim and is the best interest
of the minor A.K.G. The court hereby approves the settlement as a court in which
the action is pending, pursuant to O.C.G.A. § 29-3-3(e).

       Pursuant to the terms of the joint stipulation, the settlement proceeds will be
allocated for payment of a lien in the amount of $5,734.05 to Optum Subrogation
Services, and all other settlement proceeds will be utilized to purchase annuities for
the benefit of the minor A.K.G., who will not receive any portion thereof until she
reaches the age of majority. Accordingly, no bond or conservatorship is required.
O.C.G.A. § 29-3-3(h); Griffin v. Acadia Healthcare Company, Inc. et al., 2015 WL
5321002 (N.D. Ga. July 20, 2015).

       The undersigned finds said stipulation reasonable and adopts it as the
decision of the Court in awarding damages, on the terms set forth therein.

      Damages awarded in that stipulation are:

      a. A lump sum of $5,734.05, which amount represents reimbursement of a
         lien for services rendered on behalf of A.K.G., in the form of a check
         payable jointly to petitioners and Optum, Inc., and mailed to:

                            Optum Subrogation Services
                               Attn: Debbie Persson
                          75 Remittance Drive, Suite 6019
                              Chicago, IL 60675-6019
                            Optum File#: SN20795351

          Petitioners agree to endorse this check to Optum, Inc.

      b. An amount of $180,000.00 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.

                                           2
       In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 18-1711V according to this decision
and the attached stipulation.2

       IT IS SO ORDERED.

                                                     s/Christian J. Moran
                                                     Christian J. Moran
                                                     Special Master




       2
          Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.

                                                3
               IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                         OFFICE OF SPECIAL MASTERS


                                                      )
MICHAEL GRESHAM and ALLISON                           )
GRESHAM, as Parents, Natural                          )
Guardians and Next Friends of A.K.G.,                 )
ammor,                                                )
                                                      )
                       Petitioner,                    )      No. 18-1711V
                                                      )      Special Master Moran
v.                                                    )      (ECF)
                                                      )
SECRETARY OF HEALTH AND                               )
HUMAN SERVICES,                                       )
                                                      )
                       Respondent.                    )


                                         STIPULATION

       The parties hereby stipulate to the following matters:

       1. On behalf of their daughter, A.K.G., petitioners 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 A.K.G.'s receipt of the flu vaccine, which vaccine is contained in the Vaccine Injury Table

(the "Table"), 42 C.F.R. § 100.3 (a).

       2. A.K.G. received her flu immunization on or about December 29, 2015.

       3. The vaccine was administered within the United States.

       4. Petitioners allege that A.K.G. suffered optic neuritis as a result of her immunization.

Petitioners further allege that A.K.G. experienced the residual effects of this injury for more than

six months.




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       5. Petitioners represent that there has been no prior award or settlement of a civil action

for damages on behalf of A.K.G. as a result of her alleged condition.

       6. Respondent denies that A.K.G. suffered optic neuritis as a result of her flu

immunization, and denies that the flu vaccine caused her any other injury.

       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 petitioners have filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

       a. A lump sum of $5,734.05, which amount represents reimbursement of a lien for
       services rendered on behalf of A.K.G., in the form of a check payable jointly to
       petitioners and Optum, Inc., and mailed to

                                   Optum Subrogation Services
                                      Attn: Debbie Persson
                                 75 Remittance Drive, Suite 6019
                                     Chicago, IL 60675-6019
                                   Optum File#: SN20795351

       Petitioners agree to endorse this check to Optum, Inc.

       b. An amount of $180,000.00 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").

       These amounts represent compensation for all damages that would be available under 42

U.S.C. §300aa-15(a).

       9. The Life Insurance Company must have a minimum of $250,000,000.00 capital and

surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company


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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, Aal, 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 A.K.G., pursuant to which the Life Insurance

Company will agree to make a lump sum payment to A.K.G. for all damages that would be

available under 42 U.S.C. §300aa-15(a), as follows:

       a. $199,616.29 payable in a certain lump sum on March 26, 2026.

The purchase price of the annuity described in this paragraph shall neither be greater than nor

less than $180,000.00. In the event that the cost of the lump sum annuity payment set forth

above varies from $180,000.00, the lump sum payment on March 26, 2026, listed above shall be

adjusted to ensure that the total cost of the annuity is neither less nor greater than $180,000.00.

Should A.K.G. predecease the payment of the certain lump sum set forth above, the certain lump

sum payment shall be made to her estate. However, written notice to the Secretary of Health and

Human Services and the Life Insurance Company shall be provided within twenty (20) days of

A.K.G.'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


                                                 -3-
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 petitioners have filed both a proper and timely election to receive compensation pursuant to

42 U.S.C. § 300aa-21(a)(l), 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. Petitioners and their 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 prepaid basis.

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

pursuant to paragraph 12 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 unreimbursed expenses, the money provided

pursuant to this Stipulation will be used solely for the benefit of A.K.G. 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-l 5(g) and (h).


                                                 -4-
        16. In return for the payments described in paragraphs 8 and 12, petitioners, in their

individual capacity, and as legal representatives of A.K.G., on their own behalf and on behalf of

A.K.G. and A.K.G.'s heirs, executors, administrators, successors, and assigns, do 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 United States 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 A.K.G. resulting

from, or alleged to have resulted from, the flu vaccination administered on or about December

29, 2015, as alleged by petitioners in a petition for vaccine compensation filed on or about

November 5, 2018, in the United States Court of Federal Claims as petition No. 18-171 lV.

        17. If A.K. G. 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 United States 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


                                                  -5-
parties hereto to make any payment or 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. 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 A.K.G.'s optic neuritis or

any other injury or any of her current conditions.

       21. All rights and obligations of petitioners hereunder shall apply equally to petitioners'

heirs, executors, administrators, successors, and/or assigns as legal representatives of A.K.G.

                                    END OF STIPULATION


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                                    ±   i#




Respectfully submitted,




ATTORNEY OF RECORD FOR


d~
SUSAN M. CREMER, ESQ.
                              er~                                 E.REEVES
NeffLaw                                            Deputy Director
The Pinnacle Building, Suite 509                   Torts Branch
3455 Peachtree Road NE                             Civil Division
Atlanta, GA 30326                                  U.S. Department of Justice
Tel: '-.(404) 531-9700                             P.O. Box 146
                                                   Benjamin Franklin Station
                                                   Washington, DC 20044-0146



AUTHORIZED REPRESENTATIVE                          ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALm
AND HUMAN SERVICES:
                                                   ~~ '3~
                                                    u:5(~ ~~
                                                   CLAUDIA B. GANGI
T~o· OVERBD.:.           fl .
A
. ctmg 1rector, 1v1s1on o nJury                    Senior Trial Attorney
Compensation Programs                              Torts Branch
Healthcare Systems Bureau                          Civil Division
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 1 lC-26               Washington, DC 20044-0146
Rockville, MD 20857                                Tel: (202) 616-4138


Dated:        '-t )l't / .)..<::>
• \ , . i·'


                                             -7-
