          In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 18-1201V
                                      Filed: August 28, 2019
                                          UNPUBLISHED


    ABEJE SCHNAKE,

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


Jerome A. Konkel, Samster, Konkel & Safran, S.C., for petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On August 14, 2018, Abeje Schnake (“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 Guillain-
Barré syndrome Miller-Fisher variant as a result of an influenza (“flu”) vaccine she
received on October 7, 2015.3 Petition at 1; Stipulation, filed August 28, 2019, at ¶¶ 2,
4. Petitioner further alleges that her injury resulted in inpatient hospitalization and
surgical intervention. Petition at 4; Stipulation at ¶ 4. “Respondent denies that
petitioner sustained a GBS Table injury and denies that petitioner’s alleged GBS and its
residual effects were caused-in-fact by the flu vaccine and/or the meningococcal

1
  The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the internet. 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. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required 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).
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).
3
    Petitioner also received a meningococcal conjugate vaccine the same day.
conjugate vaccine. Respondent further denies that the flu vaccine and/or the
meningococcal conjugate vaccine caused petitioner any other injury or her current
condition. Respondent also denies that petitioner suffered the residual effects of this
condition for more than six months and that petitioner’s alleged injury resulted in
surgical intervention.” Stipulation at ¶ 6.

        Nevertheless, on August 28, 2019, the parties filed the attached joint stipulation,
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.

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

        a. A lump sum of $3,000.00, in the form of a check payable to petitioner;

        b. A lump sum of $57,502.04, which amount represents reimbursement of a
           Medicaid lien, in the form of a check payable jointly to petitioner and

                                              Optum
                                  75 Remittance Drive, Suite 6019
                                      Chicago, IL 60675-6019
                        Group: Wisconsin Forward Health Medicaid, #WIFHMD
                                         File #: 35898743
                                       Attn: Jocelyn Adams

        c. An amount sufficient to purchase the annuity contract described in paragraph
           10 of the joint 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 § 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.4

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          Chief Special Master




4
  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        .

                                                       )
ABEJE SCHNAKE,                                         )
                                                       )
                  Petitioner,                          )
                                                       )   No. 18- I 20 IV
V.                                                     )   Chief Special Master Dorsey
                                                       )   ECF
SECRETARY OF HEALTH AND HUMAN                          )
SERVICES,                                              )
                                                       )
________________ Respondent.                           )
                                                       )


                                           STIPULATION

          The parties hereby stipulate to the following matters:

          I. Abejc Schnake, 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. § I 00.3(a).

         2. Petitioner received the nu immunization on October 7, 2015. 1

         3. The vaccination was administered within the United States.

         4. Petitioner alleges that she suffered Guillain-Barre Syndrome ("GBS") Miller-Fisher

Variant within the time period set forth in the Table, or in the alternative, that her alleged GBS

was caused-in-fact by the flu vaccine she received, and further alleges that her injury resulted in

inpatient hospitalization and surgical intervention.

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



1
    Petitioner also received a meningococcal conjugate vaccine the same day.
for damages on her behalf as a result of her condition.

        6. Respondent denies that petitioner sustained a OBS Table injury and denies that

petitioner's alleged OBS and its residual effects were caused-in-fact by the flu vaccine and/or the

meningococcal conjugate vaccine. Respondent further denies that the flu vaccine and/or the

meningococcal conjugate vaccine caused petitioner any other injury or her current condition.

Respondent also denies that petitioner suffered the residual effects of this condition for more

than six months and that petitioner's alleged injury resulted in surgical intervention.

       7. Maintaining their above-stated positions, the parties neve1thclcss 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 I (a)(l ), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

       a. A lump sum of $3,000.00 in the form of a check payable to petitioner;

       b. A lump sum of $57,502.04, which amount represents reimbursement of a Medicaid
       lien, in the form of a check payable jointly to petitioner and

                                           Optum
                               75 Remittance Drive, Suite 6019
                                   Chicago, IL 60675-6019
                    Group: Wisconsin Forward Health Medicaid, #WIFI !MD
                                      File#: 35898743
                                    Attn: Jocelyn Adams

       c. An amount sufficient to purchase the annuity contract described in paragraph I0
       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).

                                                 2
        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, 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.

        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, pursuant to which the Life

Insurance Company will agree to make payments periodically to petitioner for all remaining

damages that would be available under 42 U.S.C. §300aa-l 5(a), as follows:

       a. $3,000.00 payable in a certain lump sum on September 16, 2020.

        b. $3,000.00 payable in a certain lump sum on September 16, 2021.

       c. $52,559.71 payable in a certain lump sum on September 16, 2022.

The payments provided for in this paragraph 10 shall be made as set forth above. Should

petitioner predecease the exhaustion of any certain payments set forth above, any remaining

certain payments shall be made to her estate. Written notice to the Secretary of Health and

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

petitioner'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

                                                3
of Health and Human Services and the United States of America arc not responsible for the

payment of any sums other than the amounts set forth in parngrnph 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 l Jcalth 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-2 l (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 her 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- I 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 lJ .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 unreimbursablc cxpens~s, the money provided

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




                                                   4
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) nnd (h).

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

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

docs 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. § 300 aa-10 ct 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 and/or the meningococcal conjugate

vaccination administered on October 7, 2015, as alleged by petitioner in a petition for vaccine

compensation filed on or about August 14, 2018, in the United States Court of Federal Claims as

petition No. 18-120 I V.

        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


                                                  5
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 renect 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 and/or mcningococeal conjugate

vaccine caused petitioner to have GBS or any other injury or her 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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                                                 6
Respectfully submitted,

PETITIONER:



ABEJE SCHNAKE


ATTORNEY OF RECORD FOR                             AUTHORIZED REPRESENTATIVE
PETITIONER:                                        OF THE ATTORNEY GENERAL:


                                                                         &--
Samster, Konkel & Safran, S.C.                               irector
1110 N. Old World Third Street                     Torts Branch
Suite 405                                          Civil Division
Milwaukee, WI 53203                                U.S. Depaitmcnt of Justice
Tel: (414) 224-0400                                P.O. Box 146
                                                   Benjamin Franklin Station
                                                   Washington, DC 29044-0146

AUTHORIZED REPRESENT ATIVR                               ATTORNEY OF RECORD FOR
OF THE SECRET ARY OF HEALTH                              RESPONDENT:
AND HUMAN SERVICES:



TAMARA OVERBY                                            SARAH C. DUNCAN
Acting Director, Division of Injury Compensation         Trial Attorney
       Programs (DICP)                                   Torts Branch
Healthcare Systems Bureau                                Civil Division
Health Resources and Services Administration             U.S. Department of Justice
U.S. Department of Health and Human Services             P.O. Box 146
5600 Fishers Lane                                        Benjamin Franklin Station
Parklawn Building, Mail Stop 08N146l3                    Washington, DC 20044-0146
Rockville, MD 20857                                      Tel: (202) 514-9729




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