In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1100V
Filed: February 9, 2017
Not for Publication
*************************************
MARIA CRESPO, *
on behalf of N.S., a minor child, *
*
Petitioner, * Damages decision based on
* stipulation; DTaP vaccine;
v. * pneumococcal conjugate (“PC”)
* vaccine; transverse myelitis
SECRETARY OF HEALTH * (“TM”)
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Amber D. Wilson, Washington, DC, for petitioner.
Debra Filteau Begley, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING DAMAGES 1
On January 3, 2017, the parties filed the attached stipulation in which they agreed to
settle this case and described the settlement terms. Petitioner alleges that her daughter, N.S.,
suffered transverse myelitis (“TM”) caused by her March 1, 2013 receipt of the DTaP and
pneumococcal conjugate (“PC”) vaccines. Petitioner further alleges that N .S. suffered the
residual effects of this injury for more than six months. Respondent denies that N.S.’s TM, or
1
Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document’s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
any other injury, was caused by her receipt of the DTaP or pneumococcal conjugate vaccines.
Nonetheless, the parties agreed to resolve this matter informally.
The undersigned finds the terms of the stipulation to be reasonable. The court adopts the
parties’ stipulation, attached, and awards compensation in the amount and on the terms set forth
in the stipulation. Pursuant to the stipulation, the court awards:
a. a lump sum of $232,549.31 representing compensation for first year life care expenses
($12,549.31), and pain and suffering ($220,000.00). The award shall be in the form of a
check payable to petitioner as guardian/conservator of the estate of N.S. for the benefit of
N.S 2; and
b. a lump sum of $25,000.00 representing compensation for past unreimbursable expenses,
in the form of a check payable to petitioner, Maria Crespo; and
c. A lump sum of $2,971.98, representing reimbursement of a Medicaid lien for services
rendered on behalf of N.S., in the form of a check payable jointly to petitioner and
First Recovery Group
P.O. Box 771932
Detroit, MI 48277-1932
Attn: Felicity Solman
FRG File No.: 624092-114715
Petitioner agrees to endorse this check to First Recovery Group; and
d. An amount sufficient to purchase the annuity contract described in paragraph 10 of the
attached stipulation, paid to the life insurance company from which the annuity will be
purchased. The amount represents compensation for all damages that would be available
under 42 U.S.C. § 300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith. 3
2
Petitioner represents that she presently is, or within 90 days of the date of judgment will become, duly
authorized to serve as guardian/conservator of N.S.'s estate under the laws of the State of Florida. No
payments pursuant to this Stipulation shall be made until petitioner provides the Secretary with
documentation establishing her appointment as guardian/conservator of N .S.'s estate. If petitioner is not
authorized by a court of competent jurisdiction to serve as guardian/conservator of the estate of N.S. at
the time a payment pursuant to this Stipulation is to be made, any such payment shall be paid to the party
or parties appointed by a court of competent jurisdiction to serve as guardian/conservator of the estate of
N. S. upon submission of written documentation of such appointment to the Secretary.
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
2
IT IS SO ORDERED.
Dated: February 9, 2017 s/ Laura D. Millman
Laura D. Millman
Special Master
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IN THE UNITED ST ATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MARIA CRESPO. )
on behalf ofN .S., a minor ch ild,
)
)
Petitioner, )
v. ) No. 15-1 l OOV
) Special Master Millman
SECRETARY OF HEALTH AN D HUMAN )
SERVICES, )
)
Respondent. )
~~~~~~~~~~~~~~~-)
STlPULATION
The parties hereby stipulate to the following matters:
l. On behalf of her daughter, N .S., petitioner filed a petition fo r 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
N.S. 's receipt of the DTaP, MMR, and pneumococcal conjugate ("PC") vaccines, which
vaccines are contained in the Vaccine Injury T able (the "Table"), 42 C.F.R. § 100.3 (a).
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2. N.S. received the DTaP, Hib, and PC immunizations on March 1, 2013.
3. The vaccines were administered within the United States.
4. Petitioner all eges that N.S. suffered from transverse myelitis ("TM") that was
caused in fact by OTaP and PC vaccines, and that she experienced the residual effects of thi s
inj ury for more than six months.
Inclusion of the MMR vacci ne in the Petition is an error, and N.S. did not receive an
MMR vaccine before the onset of her alleged injury. Petitioner's counsel agrees that this was an
error. Additionally, N.S. received a haemophilus influenzae type b ('"Hib") vaccine on March I.
20 13, that was not included in the Petition.
5. Petitioner represents that there has been no prior award or settlement of a civil
action for damages on behalf of N.S. as a result of her condition.
6. Respondent denies that N.S.'s TM , or any other injury, was caused-in-fact by her
DTaP, Hib, and PC vaccinations.
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-2 l (a)(l ), the .Secretary of Health and Human
Services will issue the following vaccine compensation payments:
a. A lump sum of $232,549.31 , which amount represents compensation for first year
life care expenses ($12,549.31 ), and pain and suffering ($220,000.00), in the form
of a check payable to petitioner as guardian/conservator of the estate of N .S. for
the benefit ofN.S;
b. A lump sum of $25,000.00, which amount represents compensation for past
unreimbursable expenses, in the form of a check payable to petitioner, Maria
Crespo;
c. A lump sum of $2,971.98, which amount represents reimbursement of a Medicaid
lien for services rendered on behalf of N.S., in the form of a check payable jointly
to petitioner and
First Recovery Group
P.O. Box 771932
Detroit, Ml 48277-1932
Attn: Felicity Solman
FRO File No: 624092-114715
Petitioner agrees to endorse this check to First Recovery Group.
d. 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").
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These amounts represent compensation for all damages that would be avai lable under 42
U.S.C. § 300aa-l 5(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 fo llowing rating organizations:
a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;
b. Moody 's Investor Service Cla ims Paying Rating: Aa3, Aa2, Aa 1, or Aaa;
c. Standard and Poor's Corporation Insurer C laims-Paying Ability Rating: AA-,
AA, AA+, or AAA;
d. Fitch Credit Rating Company, Insurance Company C laims Paying Ability Rating:
AA-, AA, AA+, or A/\A.
10. The Secretary of Health and Human Services agrees to purchase an annuity
contract from the Life Insurance Company for the benefit ofN.S., pursuant to which the Life
Insurance Company will agree to make payments periodically to petitioner, as the court-
appointed guardian/conservator of the estate of N .S., for the fo llowing items of compensation:
a. For future unreimbursable Blue Cross Blue Shield Maximum-out-of-Pocket
(Parent's Policy) expenses, beginning on the first anniversary of the date of
judgment , an annual amount of $6,350.00 to be paid up to the anniversary of the
date of judgment in year 203 7, increasing at the rate of four percent (4%),
compounded annually from the date of judgment.
b. For future unreimbursable Blue Cross Blue Shield Premium (Parent' s Policy)
expenses, beginning on the anniversary of the date of judgment in year 2033, an
annual amount of $ 162.59 to be paid up to the anniversary of the date of judgment
in year 2037, increasing at the rate of four percent (4%), compounded annually
from the date of judgment.
c. For future unreimbursable B lue Cross Blue Shield Premium expenses, beginning
on the anniversary of the date of judgment in year 203 7, an annual amount of
$5,0 17.92 to be paid up to the anniversary of the date of judgment in year 2076,
increasing at the rate of four percent (4%), compounded annually from the date of
judgment.
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d. For future unreimbursable Blue Cross Blue Shield Maximum-out-of-Pocket
expenses, beginning on the anniversary of the date of judgment in year 203 7, an
annual amount of $2,000.00 to be paid up to the anniversary of the date of
judgment in year 2076, increasing at the rate of four percent (4%), compounded
annually from the date of judgment.
e. For future unreimbursable Medicare Supplemental Plan C expenses, beginning on
the anniversary of the date of judgment in year 2076, an annual amount of
$2,268.00 to be paid for the remainder of N.S. 's life, increasing at the rate of four
percent (4%), compounded annuall y from the date of judgment.
f. For future unreimbursable Therapy and Shoe expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $ 1,580. 10 to be paid up
to the anniversary of the date of judgment in year 2030. Thereafter, beginning on
the anniversary of the date of judgment in year 2030, an annual amount of $80. 10
to be paid for the remainder ofN.S. ' s life, all amounts increasing at the rate of
three percent (3%), compounded annually from the date of judgment.
g. For future unreimbursable Hippotherapy expenses, beginning on the first
anniversary of the date of judgment, an annual amount of$3,900.00 to be paid up
to the anniversary of the date of judgment in year 2023, increasing at the rate of
three percent (3%), compounded annually from the date of judgment.
h. For future unreimbursable Diaper expenses, beginning on the first anniversary of
the date of judgment, an annual amount of $7 19.2 1 to be paid up to the
anniversary of the date of judgment in year 20 19. Then, beginning on the
anniversary of the date of judgment in 20 19, an annual amount of $359.6 1 to be
paid up to the anniversary of the date of judgment in year 2023, 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 may be provided to the petitioner in monthly, quarterly, annual or other installments.
The " annual amounts" set forth above describe only the total yearly sum to be paid to the
petitioner and do not require that the payment be made in one annual installment. The petitioner
will continue to receive the annuity payments from the Life Insurance Company only so long as
N.S. is alive at the time that a particular payment is due. Written notice to the Secretary of
Health and Human Services and the Life Insurance Company shall be provided within twenty
(20) days ofN.S. ' s death.
4
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 fo llowing 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-2 l (a)( l ), and an application, the parties will submit to further proceedings
before the spec ial 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 liab le
under 42 U .S.C. § 300aa- l 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 U.S .C. § 300aa-15(i),
subject to the availability of sufficient statutory funds.
5
15. The parties and their attorneys further agree and stipulate that, except for any
award for attorneys' fees and litigation costs, and past unreimburseable expenses, the money
provided pursuant to this Stipulation will be used solely for the benefit ofN.S. as contemplated
by a strict construction of 42 U.S.C. §300aa-l S(a) and (d), and subj ect to the conditions of 42
U.S.C. § 300aa- l S(g) and (h).
16. Petitioner represents that she presently is, or within 90 days of the date of
j udgment will become, duly authorized to serve as guardian/conservator of N.S.'s estate under
the laws of the State of Florida. No payments pursuant to this Stipulation shall be made until
petitioner provides the Secretary with documentation establishing her appointment as
guardian/conservator of N .S.' s estate. If petitioner is not authorized by a court of competent
jurisdiction to serve as guardian/conservator of the estate of N .S. at the time a payment pursuant
to this Stipulation is to be made, any such payment shall be paid to the party or parties appointed
by a court of competent jurisdiction to serve as guard ian/conservator of the estate of N. S. upon
submission of written documentation of such appointment to the Secretary.
17. In return for the payments described in paragraphs 8 and 12, petitioner, in her
individual capacity and as legal representative of N.S ., on behalf of herself, N.S., and N.S.'s
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 accou nt of, or in any way growing out of, any and all known or unknown, suspected or
6
unsuspected personal injuries to or death of N.S. resulting from , or alleged to have resu lted from
the DTaP, Hib, and PC vaccinations administered on March 1, 2013, as alleged by petitioner in a
petition for vaccine compensation filed on or about October 1, 2015. in the United States Court
of Federal Claims as petition No. 15-1 IOOV.
18. IfN.S . should die prior to entry of judgment, thi s agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
19. lf the special master fail s 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.
20. 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 express! y
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 thi s agreement.
21. 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.
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22. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that N.S.'s TM, or any other injury or condition, was
caused in fact by her DTaP, Hib, and PC vaccinations.
23. All rights and obligations of petitioner hereunder shall apply equally to
petitioner's heirs, executors, administrators, successors, and/or assigns as legal representatives of
N.S.
END OF STIPULATION
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Respectfully submitted,
MARIA -..RESPO
' ORNEY OF RECORD FOR
PE J'IONER:
BER D. WILSON, Ph.D., ESQ.
MAGLIO CHRISTOPHER & TOALE eputy Director
1775 PeMsylvania Ave., NW Suite 225 Torts Branch
Washington, DC 20006 Civil Division
Tel: (888) 952-5242 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-01 46
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRET Y F HEALTH RESPONDENT:
AND HU E VIC ' :
~;;:
R,M.D.
Director, Division of Injury
Compensation Programs
~hkB~
Trial Attorney
Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department ofliealtll U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop I 1C-26 Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-4181
r 3=-i/---=lfJ
Datecj: ----1)-1--/
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Crespo v. Secretary of Health and Human Services
Combined Opinion