        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 14-881V
                                    Filed: November 9, 2015
                                         UNPUBLISHED

****************************
JEFFERY PIERCE,                        *
                                       *
                    Petitioner,        *       Joint Stipulation on Damages;
                                       *       Influenza (Flu) Vaccine; Guillain-
                                       *       Barre Syndrome (GBS);
SECRETARY OF HEALTH                    *       Special Processing Unit (“SPU”)
AND HUMAN SERVICES,                    *
                                       *
                    Respondent.        *
                                       *
****************************
Lawrence R. Cohan, Anapol, Schwartz, et al., Philadelphia, PA, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On September 22, 2014, 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 he suffered from Guillain-Barre syndrome (GBS)
as a result of an influenza (“flu”) vaccine he received on October 19, 2014. Petition at 1;
Stipulation, filed 11/6/2015. Respondent denies that the influenza vaccine caused
petitioner to suffer from GBS or any other injury or his current condition. Stipulation, ¶ 6.

       Nevertheless, on November 6, 2015, 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.



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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended
at 44 U.S.C. § 3501 note (2006)). 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.
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).
                                                       1
        The parties stipulated that petitioner shall receive the following compensation:

        a. A lump sum of $1,173,515.77, in the form of a check payable to
           petitioner. This amount represents compensation for first year life care
           expenses ($250,887.77), lost earnings ($700,000.00), pain and suffering
           ($220,000.00), and past unreimbursable expenses ($2,628.00). Stipulation, ¶
           8.

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

        c. These amount represents compensation for all items of damages that would
           be available under 42 U.S.C. § 300aa-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.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
____________________________________
                                    )
JEFFERY PIERCE,                     )
                                    )
                Petitioner,         )
    v.                              )
                                    )                        No. 14-881V
SECRETARY OF HEALTH                 )                        Chief Special Master Dorsey
AND HUMAN SERVICES                  )
                                    )
               Respondent.          )
____________________________________)

                                         STIPULATION

       The parties hereby stipulate to the following matters:

       1. Jeffery Pierce, 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 vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”),

42 C.F.R. § 100.3 (a).

       2. Petitioner received his flu immunization on October 19, 2013.

       3. The vaccination was administered within the United States.

       4. Petitioner alleges that he 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 his behalf as a result of his condition.

       6. Respondent denies that the influenza 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-21(a)(1), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

       a. A lump sum of $1,173,515.77, which amount represents compensation for first year
       life care expenses ($250,887.77), lost earnings ($700,000.00), pain and suffering
       ($220,000.00), and past unreimbursable expenses ($2,628.00), in the form of a check
       payable to petitioner; and

       b. An amount sufficient 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”).

       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, 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.

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

from the Life Insurance Company for the benefit of petitioner, Jeffery Pierce, pursuant to which

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




                                                 2
a. For future unreimbursable Health Insurance Premium expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $5,520.00 to be paid up to the
anniversary of the date of judgment in year 2035, increasing at the rate of five percent
(5%), compounded annually from the date of judgment.

b. For future unreimbursable Health Insurance Maximum-out-of-Pocket expenses,
beginning on the first anniversary of the date of judgment, an annual amount of
$3,500.00 to be paid up to the anniversary of the date of judgment in year 2035,
increasing at the rate of five percent (5%), compounded annually from the date of
judgment.

c. For future unreimbursable Medicare Part B Premium, AETNA Medicare Advantage,
and AETNA Medicare Advantage Rx expenses, beginning on the anniversary of the date
of judgment in year 2035, an annual amount of $9,194.80 to be paid for the remainder of
petitioner’s life, increasing at the rate of five percent (5%), compounded annually from
the date of judgment.

d. For future unreimbursable Power Wheelchair, Quad Cane, Adjustable Bed, and Lift
Chair expenses, on the anniversary of the date of judgment in year 2020, a lump sum of
$6,400.00. Then, on the anniversary of the date of judgment in year 2025, a lump sum of
$10,940.33. Then, on the anniversary of the date of judgment in year 2030, a lump sum
of $6,400.00. Then, on the anniversary of the date of judgment in year 2035, a lump sum
of $10,963.16. Thereafter, beginning on the anniversary of the date of judgment in year
2036, an annual amount of $1,738.60 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.

e. For future unreimbursable Wheelchair Cushion, Activities for Daily Living
Equipment, and Adaptive Recreational Equipment expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $88.73 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.

f. For future unreimbursable YMCA and Trainer expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $1,410.00 to be paid up to the
anniversary of the date of judgment in year 2019. Thereafter, beginning on the
anniversary of the date of judgment in year 2019, an annual amount of $818.00 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.

g. For future unreimbursable Case Management expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $2,040.00 to be paid up to the
anniversary of the date of judgment in year 2018. Thereafter, beginning on the
anniversary of the date of judgment in year 2018, an annual amount of $1,020.00 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.

                                         3
       h. For future unreimbursable Home Attendant Care expenses, beginning on the first
       anniversary of the date of judgment, an annual amount of $35,100.00 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

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, Jeffery Pierce, is alive at the time that a particular 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 Jeffery Pierce’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-21(a)(1), and an application, the parties will submit to further proceedings

                                                  4
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. § 300 aa-10 et seq., on account of, or in any way growing out of, any and all



                                                   5
known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting

from, or alleged to have resulted from, the influenza vaccination administered on October 19,

2013, as alleged by petitioner in a petition for vaccine compensation filed on or about September

22, 2014, in the United States Court of Federal Claims as petition No. 14-881V.

       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

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.




                                                  6
       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 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
/


/


/


/


/


/


/




                                                 7
