In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: February 17, 2017
No. 15-1148V
* * * * * * * * * * * * * * *
ALYCE SCHWENN, *
* UNPUBLISHED
*
Petitioner, * Chief Special Master Dorsey
*
v. * Influenza (“Flu”) Vaccine; Transverse
* Myelitis; Joint Stipulation.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Justin Aaron Smith, Sloan Bagley Hatcher & Perry Law Firm, Longview, TX, for petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On October 8, 2015, Alyce Schwenn (“petitioner”) filed a petition under the National
Vaccine Injury Compensation Program.2 Petitioner alleges that she developed transverse
myelitis as a result of an influenza (“flu”) vaccine received on October 16, 2013. Petition at 1.
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note
(2012)(Federal Management and Promotion of Electronic Government Services). As provided
by Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in
substance and is privileged or confidential; or (2) that includes medical files or similar files, the
disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule
18(b).
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision
to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
1
On February 17, 2017, the parties filed a stipulation recommending an award of
compensation to petitioner. Stipulation (ECF No. 39). Respondent denies that the flu vaccine
caused petitioner’s alleged transverse myelitis and residual effects, or any other injury.
Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The
undersigned finds the stipulation reasonable and adopts it as the decision of the Court in
awarding damages, on the terms set forth therein.
The parties stipulate that petitioner shall receive the following compensation:
1) A lump sum of $315,000.00, in the form of a check payable to petitioner, Ms. Alyce
Schwenn;
2) An amount sufficient to purchase the annuity contract described in paragraph 10 of
the stipulation, paid to the life insurance company from which the annuity will be
purchased.
These amounts represent compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a). Joint Stipulation at ¶ 8.
The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.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 is 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
__________________________________________
)
ALYCE SCHWENN, )
)
Petitioner, )
) No. 15-1148V (ECF)
v. ) Chief Special Master Dorsey
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
STIPULATION
The parties hereby stipulate to the following matters:
1. Alyce Schwenn (“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 October 16, 2013. 1
3. The vaccine was administered within the United States.
4. Petitioner alleges that she subsequently suffered transverse myelitis (“TM”),
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.
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The petition alleges in different places that the vaccination occurred on either October
14, 2013, or October 16, 2013. See Petition for Vaccine Compensation at preamble, ¶¶ 2-3. The
vaccination record, however, documents the vaccination date as October 16, 2013.
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 TM 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 $315,000.00 in the form of a check payable to
petitioner, Alyce Schwenn; 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”).
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, Aa1, or Aaa;
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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 petitioner’s benefit, pursuant to which the Life
Insurance Company will agree to make payments periodically to petitioner, as follows:
Beginning as soon as practicable after the date of judgment, $4,053.30 per month for life
only.
Petitioner will continue to receive the annuity payments from the Life Insurance Company only
so long as she is alive at the time that a particular payment is due. Written notice to the
Secretary of Health and Human Services and to the Life Insurance Company shall be provided
within twenty (20) days of petitioner’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
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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
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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
October 16, 2013, as alleged by petitioner in a petition for vaccine compensation filed on or
about October 8, 2015, in the United States Court of Federal Claims as petition No. 15-1148V.
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 TM 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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