         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 15-1261V
                                      Filed: July 19, 2017
                                        UNPUBLISHED


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

                       Respondent.


Jerome A. Konkel, Samster, Konkel & Safran, S.C., Milwaukee, WI, for petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION 1

Dorsey, Chief Special Master:

        On October 27, 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 she suffered Guillain-Barre Syndrome (“GBS”)
caused by her November 19, 2012 influenza (“flu”) vaccination. Petition at 5;
Stipulation, filed July 19, 2017, at ¶ 4. Petitioner further alleges that she experienced
the residual effects of her injury for more than six months and that there has been no
prior award or settlement of a civil action for damages as a result of her condition.
Petition at 5; Stipulation at ¶¶ 4-5. “Respondent denies that the flu vaccine caused
petitioner’s alleged GBS and residual effects, or any other injury. ” Stipulation at ¶ 6.

       Nevertheless, on July 19, 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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.

2National 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 lump sum of $200,000.00 in the form of a check payable to
                petitioner, Deborah Kaiser; and,

            •   An amount of $625,000.00 to purchase the installment refund 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”).

These amounts represent compensation for all items of damages that would be
available under 42 U.S.C. § 300aa-15(a). 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
__________________________________________
                                           )
DEBORAH KAISER,                            )
                                           )
                  Petitioner,              )
                                           )  No. 15-1261V (ECF)
v.                                         )  Chief Special Master Dorsey
                                           )
SECRETARY OF HEALTH                        )
AND HUMAN SERVICES,                        )
                                           )
                  Respondent.              )
__________________________________________)

                                         STIPULATION

       The parties hereby stipulate to the following matters:

       1.      Deborah Kaiser (“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 sustained following

petitioner’s receipt of the influenza (“flu”) vaccine, which vaccine is contained in the Vaccine

Injury Table (the “Table”), 42 C.F.R. §100.3(a).

       2.      Petitioner received a flu vaccine on November 19, 2012.

       3.      The vaccine was administered within the United States.

       4.      Petitioner alleges that she subsequently suffered Guillain-Barré syndrome

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

further alleges that she experienced the residual effects of her injury for more than six months.

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

action for damages as a result of her condition.

       6.      Respondent denies that the flu vaccine caused petitioner’s alleged GBS and
residual effects, or 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 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 $200,000.00 in the form of a check payable to
                        petitioner, Deborah Kaiser; and,

               b.       An amount of $625,000.00 to purchase the installment refund
                        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 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.


                                                  2
10.    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 as follows:

       The installment refund annuity contract will pay $2,979.04 per month, continuing
       for the life of Deborah Kaiser, and the installment refund period. The purchase
       price of the annuity shall be $625,000.00. In the event that the cost of the annuity
       payments set forth above varies from $625,000.00, the monthly payments outlined
       above shall be adjusted up or down to ensure the total Annuity Premium of the
       installment refund annuity contract shall remain fixed at exactly $625,000.00 and
       not more or less than that amount.

Upon the death of Deborah Kaiser, any installment refund periodic payments remaining due and

owing shall be paid to the United States Department of Health and Human Services. Written

notice shall be provided to the Secretary of Health and Human Services and to the Life Insurance

Company within twenty (20) days of Deborah Kaiser’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




                                                3
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.

        13.     Petitioner and her attorney represent that compensation to be provided pursuant to

this Stipulation is not for any items or services for which the Program is not primarily liable

under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be

expected to be made under any 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 by 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, the money provided pursuant to this Stipulation

will be used solely for the benefit of petitioner, 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 her

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

does forever irrevocably and unconditionally release, acquit and discharge the Secretary of

Health and Human Services and the United States of America 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




                                                   4
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 vaccine administered on

November 19, 2012, as alleged by petitioner in a petition for vaccine compensation filed on or

about October 27, 2015, in the United States Court of Federal Claims as petition No. 15-1261V.

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

America or the Secretary of Health and Human Services that petitioner’s alleged GBS and




                                                  5
residual effects, or any other injury, were caused-in-fact by the flu vaccine.

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

petitioner’s heirs, successors and/or assigns.

                                     END OF STIPULATION

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