In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 30, 2019
*************************
LINDA MCDONALD, * No. 17-706V
*
Petitioner, * Special Master Sanders
v. *
*
SECRETARY OF HEALTH * Stipulation for Award; Influenza (“flu”)
AND HUMAN SERVICES, * Vaccine; Guillian Barré Syndrome (“GBS”)
*
Respondent. *
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Carol C. Gallagher, Carol C. Gallagher, Somers Point, NJ, for Petitioner.
Lynn C. Schlie, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On May 30, 2017, Linda McDonald (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34
(2012). Petitioner alleged that the influenza (“flu”) vaccine she received on October 25, 2014
caused her to develop Guillian Barré Syndrome (“GBS”). Stip. at 1, ECF No. 40. Petitioner
further alleged that she experienced the residual effects of her injury for more than six months. Id.
On August 28, 2019, the parties filed a stipulation in which they state that a decision should
be entered awarding compensation to Petitioner. Id. at 2. Respondent denies that the flu vaccine
caused Petitioner’s alleged GBS, or any other injury. Id. at 1–2. Nevertheless, the parties agree
to the joint stipulation, attached hereto as Appendix A. I find the stipulation reasonable and adopt
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:
A lump sum of $393,918.50, which amount represents compensation for
first year life care expenses ($18,918.50), and combined lost earnings,
pain and suffering, and past unreimbursable expenses ($375,000.00) in
1
This decision shall be posted on the website of the United States Court of Federal Claims, 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 (2012)). This means the Decision will be available to anyone with access to
the Internet. 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
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
the form of a check payable to petitioner; and . . . [a]n 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 . . . .
Id.
I approve 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/Herbrina D. Sanders
Herbrina D. Sanders
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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
LINDA McDONALD )
)
Petitioner, )
V. )
) No. 17-706V
SECRETARY OF HEALTH ) Special Master Sanders
AND HUMAN SERVICES )
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
1. Linda McDonald, 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 her flu vaccination on October 25, 2014.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered from Guillian Barre Syndrome (GBS) as a result of
receiving the flu vaccine, and that she 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 her behalf as a result of her condition.
6. Respondent denies that the flu vaccine caused petitioner to suffer from GBS or any
other injury or her 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 $393,918.50, which amount represents compensation for first year life
care expenses ($18,918.50), and combined lost earnings, pain and suffering, and past
unreimbursable expenses ($375,000.00) 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").
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. AM. 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.
10. The Secretary of Health and Human Services agrees to purchase an annuity contract
from the Life Insurance Company for the benefit of petitioner, Linda McDonald, pursuant to
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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-15(a).
a. For future unreimbursable Neurologist and Podiatrist expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $802.53 to be paid for the
remainder of petitioner's life, increasing at the rate of four and four hundredths percent
(4.04%), compounded annually from the date of judgment.
b. For future unreimbursable Primary Care Physician expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $578.87 to be paid for the
remainder of petitioner's life, increasing at the rate of four and four hundredths percent
(4.04%), compounded annually from the date of judgment.
c. For future unreimbursable Remedial Therapies and Herbal Supplement expenses,
beginning on the first anniversary of the date of judgment, an annual amount of
$1,900.34 to be paid up to the anniversary of the date of judgment in year 2028.
Thereafter, beginning on the anniversary of the date of judgment in year 2028, an annual
amount of$ 1,169.44 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 Naturopath expenses, on the first anniversary of the date of
judgment, a lump sum of $467.78. Then, on the anniversary of the date of judgment in
year 2023, a lump sum of $467.78, all amounts increasing at the rate of three percent
(3%), compounded annually from the date of judgment.
e. For future unreimbursable Scooter expenses, on the anniversary of the date of
judgment in year 2024, a lump sum of$1,531.96. Thereafter, beginning on the
anniversary of the date of judgment in year 2025, an annual amount of$306.39 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 Scooter Battery, Scooter Maintenance, and Scooter Lift
expenses, beginning on the first anniversary of the date of judgment, an annual amount of
$390.67 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.
g. For future unreimbursable Foot Spa, Cane, Walker, Grab Bar, Shower Chair, Raised
Toilet Seat, ADL, and Lift Chair expenses, beginning on the first anniversary of the date
of judgment, an annual amount of $176.07 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 Caregiver expenses, beginning on the first anniversary of
the date of judgment, an annual amount of $10,451.87 to be paid up to the anniversary of
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the date of judgment in year 2024. Then, beginning on the anniversary of the date of
judgment in year 2024, an annual amount of $20,903.74 to be paid up to the anniversary
of the date of judgment in year 2033. Thereafter, beginning on the anniversary of the
date of judgment in year 2033, an annual amount of $29,265.24 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
she, Linda McDonald, 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 Linda McDonald's death.
11. Proof of Living Language Required by Life Insurance Company. Petitioner,
Linda McDonald agrees to submit to Metropolitan Tower Life Insurance Company's
Administrative office an affidavit annually, or on demand by Metropolitan Tower Life Insurance
Company, testifying to the fact that she, Linda McDonald, is living. If documentation is not
received within sixty days, Metropolitan Tower Life Insurance Company reserves the right to
suspend payment until proof that Linda McDonald is still living has been delivered. This
affidavit should be notarized and mailed along with a copy of government issued identification
to:
MetLife Structured Settlements
PO Box 14403
Lexington, KY 40512-4403, USA.
12. 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
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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 13 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.
13. 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)(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.
14. Petitioner agrees to accept and maintain responsibility for any and all tax
consequences in Australia that may arise as a result of any action or payment contemplated by
this Stipulation.
15. Petitioner agrees to accept and maintain responsibility for obtaining and/or
maintaining a means of depositing a check issued in U.S. dollars. Petitioner agrees to accept and
maintain responsibility for negotiating and depositing such payments, as well as paying any costs
and/or fees associated with doing so.
16. Petitioner agrees to accept and maintain responsibility for any unanticipated or
uncontemplated fees, costs, or other consequential expenses relating to this Stipulation,
including, but not limited to, those specifically arising out of her foreign residency and
citizenship.
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17. 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. § 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.
18. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 13 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i),
subject to the availability of sufficient statutory funds.
19.· 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).
20. 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 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
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 25, 2014, as
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alleged by petitioner in a petition for vaccine compensation filed on or about May 30, 2017, in
the United States Court of Federal Claims as petition No. 17-706V.
21. 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.
22. 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.
23. 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 13 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.
24. 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.
25. This Stipulation shall not be construed as an admission by the United States of
America or the Secretary of Health and Human Services that the flu vaccine caused petitioner's
OBS or any other injury or her current condition.
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26. This Stipulation shall be governed by and construed in accordance with the laws of
the United States of America, without regard to principles of conflicts of laws thereof, or of any
other jurisdiction. Any action brought by either party against the other concerning any provision
of this Stipulation, or action contemplated by this Stipulation shall be brought only in a United
States federal district court. The parties to this Stipulation hereby waive any assertion of
jurisdiction and venue of any action outside of the United States of America. Nothing in this
stipulation is a waiver of any of the prjvileges and immunities available to the United States of
America.
27. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
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~espectfully submitted,
PETITIONER:
LINDA MCDONALD
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
Cornerstone Commerce Center irector
1201 New Road, Suite 133 Torts Branch
Linwood, NJ 08221 Civil Division
Tel: (609) 837-6262 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 HEALTH RESPONDENT:
AND HUMAN SERVICES:
TAMARA OVERBY, M . .
Acting Director, Division oflnjury
d ~ ~w.µ
Trial Attorney
Compensation Programs Tarts 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
Park.lawn Building, Mail Stop l lC-26 Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-3776
Dated: ~ \ 6)~ \ & <:I \ 9i
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