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

******************* * *
DONNA HIGGINS,                      *
                                    *      No. 13-497V
                 Petitioner,        *      Special Master Christian J. Moran
                                    *
v.                                  *      Filed: April 29, 2015
                                    *
SECRETARY OF HEALTH                 *      Stipulation; influenza (“flu”) vaccine;
AND HUMAN SERVICES,                 *      Guillain-Barré syndrome (“GBS”).
                                    *
                 Respondent.        *
****************** ** *
Lawrence R. Cohan, Anapol, Schwartz, et al., Philadelphia, PA, for petitioner;
Michael P. Milmoe, United States Dep’t of Justice, Washington, DC, for
respondent.
                              UNPUBLISHED DECISION1

       On April 28, 2015, respondent filed a joint stipulation concerning the
petition for compensation filed by Donna Higgins on July 22, 2013. In her
petition, petitioner alleged that the influenza vaccine, which is contained in the
Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which she received
on November 1, 2011, caused her to suffer Guillain-Barré Syndrome (“GBS”).
Petitioner further alleges that she suffered the residual effects of this injury for
more than six months. Petitioner represents that there has been no prior award or
settlement of a civil action for damages on her behalf as a result of her condition.

     Respondent denies that the influenza vaccine caused petitioner to suffer
GBS or any other injury.


       1
          The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), 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.
      Nevertheless, the parties agree to the joint stipulation, attached hereto as
Appendix A. The undersigned finds said stipulation reasonable and adopts it as the
decision of the Court in awarding damages, on the terms set forth therein:

        a. A lump sum of $1,048,896.81, which amount represents
           compensation for first year life care expenses ($62,735.15); lost
           earnings ($769,689.00); and pain and suffering ($208,074.05); and
           past unreimbursable expenses ($8,398.61) in the form of a check
           payable to petitioner, Donna Higgins; and

        b. An amount sufficient to purchase the annuity contract described in
           paragraph 10 of the stipulation attached hereto as “Appendix A,”
           paid to the life insurance company from which the annuity will be
           purchased (the "Life Insurance Company").2

       In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 13-497V according to this decision
and the attached stipulation.3

        Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6360.

IT IS SO ORDERED.
                                                     s/Christian J. Moran
                                                     Christian J. Moran
                                                     Special Master



        2
          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, 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.
        3
          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.

                                                2
                  IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                            OFFICE OF SPECIAL MASTERS

                                                )
DONNA HIGGINS,                                  )
                                                )
                       Petitioner,              )
     v.                                         )
                                                )               No. 13-497V
SECRETARY OF HEALTH                             )               Special Master Moran
AND HUMAN SERVICES                              )               ECF
                                                )
                      Respondent.               )


                                           STfPULATION

          The parties hereby stipulate to the following matters:

          1. Donna Higgins, petitioner, filed a petition for vaccine compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa- J0 to -34 (the "Vaccine

Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt

of an influenza vaccine, which vaccine is contained in the Vaccine InJury Table (the "Tab le"), 42

C.F.R. § 100.3 (a).

          2. Petitioner received her influenza immunization on November 1, 2011.

          3. The vaccination was administered within the United States.

          4. Petitioner alleges that she suffered Guillain-Barre Syndrome ("GBS") as a result of

receiving the influenza vaccine.

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

for damages on her behalf as a result of her condition.

          6. Respondent denies that the influenza vaccine caused petitioner to suffer from Guillain-

Barre Syndrome ("GBS") or any other injury.

          7. Maintaining their above-stated positions, the parties nevertheless nt>w 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 1(a)(1), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

       a. A lump sum of $1,048,896.81, which amount represents compensation for first year
       life care expenses ($62,735.15); lost earnings ($769,689.00); and pain and suffering
       ($208,074.05); and past unreimbursable expenses ($8,398.61) in the fo1m of a check
       payable to petitioner; and

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

       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.

       J0. The Secretary of Health and Human Services agrees to purchase an annuity contract

from the Life Insurance Company for the benefit of petitioner, Donna Higgins, pursuant to which

the Life Insurance Company will agree to make payments periodically to petitioner as follows:

       a. For future unreimbursab!e BCBS PPO Premium, Medicare Part B Premium, BCBS
       PPO Rx Co-pay, Medigap F Premium, and Medicare Part D expenses, beginning on the
       first anniversary of the date of judgment, an annual amount of $5,319.60 to be paid up to


                                                 2
the anniversary of the date of judgment in year 2028. Thereafter, beginning on the
anniversary of the date of judgment in year 2028, an annual amount of $7,294.00 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 BCBS PPO Maximum Out of Pocket expenses, beginning
on the first anniversary of the date of judgment, an annual amount of $4,900.00 to be paid
up to the anniversary of the date of judgment in year 2028, increasing at the rate of five
percent (5%), compounded annually from the date of judgment.

c. For future unreimbursable Home Care and Transportation expenses, beginning on the
first anniversary of the date of judgment, an annual amount of $28,200.00 to be paid up
to the anniversary of the date ofjudgment in year 2028. Thereafter, beginning on the
anniversary of the date of judgment in year 2028, an annual amount of $39,900.00 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.

d. For future unreimbursable YMCA expenses, beginning on the first anniversary of the
date ofjudgment, an annual amount of $408.00 to be paid up to the anniversary of the
date of judgment in year 2028, increasing at the rate of three percent (3%), compounded
annually from the date of judgment.

e. For future unreimbursable Neuro Stimulator Unit, Lift Chair, Foam Layer for Bed,
 Mattress Protector, Lift Maintenance, Battery, Toilet Safety Rai l, Reacher, Utens il
Holder, Alarm System expenses, on the first anniversary of the date of judgment, a lump
 sum of $1,377.93. Then, beginning on the anniversary of the date ofjudgmerit in year
20 17, an annual amount of $857.93 to be paid up to the anniversary of the date of
judgment in year 2019 . Then, on the anniversary of the date of judgment in year 20 19, a
 lump sum of $1 ,037.93. Then, on the anniversary of tbe date of judgment in year 2020, a
lump sum of $982.93. Then, beginning on the anniversary of th.e date of judgment in
year 2021, an annual amount of $942.93 to be paid up to the anniversary of the date of
judgment in year 2024. Then, on the anniversary of the date of judgment in year 2024, a
lump sum of $1,182.93. Then, on the anniversary of the date ofjudgment in year 2025, a
lump sum of $1 ,772.93. Then, beginning on the anniversary of the date of judgment in
year 2026, an annual amount of $1,241.93 to be paid up to the anniversary of the date of
judgment in year 2028. Thereafter, beginning on the anniversary of the date of judgment
in year 2028, an annual amount of $981.93 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 Poise Pad, Glove, Wipe, and Tylenol expenses, beginning
on the first anniversary of the date of judgment, an annual amount of $588.42 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.




                                        3
        g. For future unreimbursable Ancillary Care at Home expenses, beginning on the first
        anniversary of the date of judgment, an annual amount of $900.00 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.

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

install ments. 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

she, Donna Higgins, is alive at the time that a patticular 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 Donna Higgins's death.

        11. The annuity contract will be owned solely and exclusively by the Secreta~ 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 patties 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 U11ited 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 petit ioner has fi led both a proper and timely election to receive compensation pursuant to

42 U.S.C. § 300aa-21(a)(l), and an application, the pruties will submit to further proceedings

before the special master to award reasonable attorneys' fees and costs incurred in proceeding


                                                 4
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. § 300au- l 5(g), including State compensation programs, insurance polic ies,

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),

subj ect to the availability of sufficient statutory funds.

        15. The patties and their attorneys fmther agree and stipulate that, except for any award

for attorneys' fees and litigation costs, and past unreimbursable expenses, the money provided

pursuant to this Stipu lation 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- l 5(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 unconditional ly release, acquit and discharge the United States and

the Secretary ofHeaJth and Human Services from any and a ll actions or causes of action

(including agreements, j udgments, c laims, <lam ages, 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



                                                    5
from, or alleged to have resulted from, the influenza vaccination administered on November I ,

201 L, as alleged by petitioner in a petition for vaccine compensation filed on or about July 22,

201 3, in the United States Court of Federal Claims as petition No. 13-497V.

        17. Ifpetitioner 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 Cou1t of Federal Claims fai ls 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 pa1ty.

        19. Thls 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 abso lutely no agreement on the part of the

pa1ties hereto to make any payment or to do any act or thing other than is herein expressly stated

and clearly agreed to. The parties fwther 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 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 influenza vaccine caused petitioner's GBS, or

any other injury.



                                                  6
       22. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

heirs, executors, administrators, successors, andJor assigns.

                                    END OF STIPULATION
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                                                 7
Respectfully submitted,

PETITIONER:




ATIORNEY OF RECO                                   AUTHORIZED REPRESENTATIVE
PETITIONER:                                        OF THE ATTORNEY GENERAL:



LA        CER.      f
AN OL SCHWARTZ                                     Deputy Director
1710 Spruce Street                                 Torts Branch
Philadelphia, PA 19103                             Civil Division
(215) 790-4567                                     U.S. Department of Justice
                                                   P.O. Box 146
                                                   Benjamin Franklin Station
                                                   Washington, DC 20044-0146


AUTHORIZED REPRESENTATIVE                          ATTORNEYOFRECORDFOR
OFTHESECRE~OFBEALTH                                RESPONDENT:
AND HU           f'RVIfES:


                                                   M~1fLc
                      /       ,./'\
                          /
                              (C".iJ('--
                       ON M.D., M.P.H., FAAP
Director, Divis on of Injury Compensation          Senior Trial Counsel
Programs                                           To1ts 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) 616-4125



Dated:   4-p;l ~ do~

                                               8
