     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-384V
                                         UNPUBLISHED


    CLIFTON E. CARLTON, SR.,                                  Chief Special Master Corcoran

                         Petitioner,                          Filed: January 17, 2020
    v.

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


Randall G. Knutson, Knutson & Casey Law Firm, Mankato, MN, for petitioner.

Jeffrey T. Sprague, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION ON JOINT STIPULATION 1

        On March 13, 2018, Clifton E. Carlton, Sr. 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 he suffered from Guillain Barre Syndrome
(“GBS”) as a result of receiving an influenza (“flu”) vaccination. Petition at 1; Stipulation,
filed January 16, 2020, at ¶¶ 1. Petitioner further alleges that the vaccine was
administered within the United States, that he experienced symptoms of the 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 alleged injuries. Petition at 3-4; Stipulation at ¶¶
2-5. “Respondent denies that the flu vaccine caused petitioner to suffer from GBS or
any other injury or his current condition.” Stipulation at ¶ 6.

       Nevertheless, on January 16, 2020, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. I find the stipulation

1
  Because this unpublished ruling contains a reasoned explanation for the action in this case, I am
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). This means the ruling 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, I agree that the identified material fits within this definition, I 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).
reasonable and adopt it as my decision awarding damages, on the terms set forth
therein.

     Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:

            a. A lump sum of $245,236.89 (consisting of ($59,541.19 for first year
               life care expenses, $40,695.70 for lost earnings, and $145,000.00 for
               pain and suffering) in the form of a check payable to Petitioner.
               Stipulation at ¶ 8.
            b. An amount sufficient to purchase the annuity contract described in
               paragraph 10 of the Stipulation.

These amounts represent compensation for all damages that would be available under
§ 15(a). Id.

       I approve 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/Brian H. Corcoran
                                          Brian H. Corcoran
                                          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

                                                 )
CLIFTON E. CARL TON, SR.,                        )
                                                 )
                       Petitioner,               )
     V.                                          )
                                                 )              No. 18-384V
SECRETARY OF HEALTH                              )              Chief Special Master Corcoran
AND HUMAN SERVICES                               )              ECF
                                                 )
                      Respondent.                )



                                            STIPULATION

          The parties hereby stipulate to the following matters:

          1. Clifton E. Carlton, Sr., 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 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 October 28, 2016.

          3. The vaccination was administered within the United States.

          4. Petitioner alleges that he suffered from Guillain Barre Syndrome ("GBS") as a result

of receiving the flu yaccine, 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 GBS or any

other injury or his current condition.

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

the following vaccine compensation payments: and

       a. A lump sum of $245,236.89, which amount represents compensation for first year lite
       care expenses ($59,541.19), lost earnings ($40,695.70), and pain and suffering
       ($145,000.00), 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-15(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, 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.




                                                 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, Clifton E. Carlton, Sr., pursuant to .

which the Life Insurance Company will 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 Medigap and Medicare Part D expenses, beginning on the
        first anniversary of the date of judgment, an annual amount of $4,371 .24 to be paid for
        the remainder of petitioner's life, increasing at the rate of four percent (4%), compounded
        annually from the date of judgment.

        b. For future unreimbursable Attendant Care expenses, beginning on the first anniversary
        of the date of judgment, an annual amount of $45,990.00 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.

        c. For future unreimbursable Ancillary Service expenses, beginning on the first
        anniversary of the date of judgment, an annual amount of $1,333.40 to be paid up to the
        third anniversary of the date of judgment, increasing at the rate of three percent (3%),
        compounded annually from the date of judgment.

        d. For future unreimbursable Ancillary Service expenses, beginning on the first
        anniversary of the date of judgment, an annual amount of $500.00 to be paid up to the
        third anniversary of the date of judgment, increasing at the rate of three percent (3%),
        compounded annually from the date of judgment.

       e. For future unreimbursable Physical Therapy, Wheelchair Maintenance, Rolling
       Walker, Shower Chair, and Walking Cane expenses, on the first anniversary of the date
       of judgment, a lump sum of$457.87. Thereafter, beginning on the second anniversary of
       the date of judgment, an annual amount of $236.52 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.

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

forth in paragraph 10 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, Clifton E. Carlton, Sr., is alive at the time that a particular payment is due. Written notice


                                                  3
shall be provided to the Secretary of Health and Human Services and the Life Insurance

Company within twenty (20) days of Clifton E. Carlton, Sr.'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

42 U.S.C. § 300aa-2l(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. 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-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 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, and past unreimbursable expenses, the money provided

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

 solely for petitioner's benefit 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 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

 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. § 300aa-l Oet 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 October 28, 2016, as

 alleged by petitioner in a petition for vaccine compensation filed on or about March 13, 2018, in

the United States Court of Federal Claims as petition No. 18-384V.

        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.




                                                    5
        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 I 986, 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. 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 caused petitioner's alleged GBS 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




                                                  6
Respectfully submitted,

PETITIONER:


 (}__   ~ f, ~s:.,,__'
CLIFTON E. CARL TON, SR.

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



RANDALL G. KNUTSON, Q.
KNUTSON CASEY LAW FIR
196 St. Andrews Drive, Suite I 00
Mankato, MN 56001                          Civil Division
Tel: (507) 344-8888                        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 HEAL TH                RESPONDENT:
AND HUMAN SERVICES:



TAMARA OVERBY                              Jeffr T. Sprague
Acting Director, Division of Injury        Tr· Attorney
Compensation Programs                         rts 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 11 C-26       Washington, DC 20044-0146
Rockville, MD 20857                        Tel: (202) 616-4179




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