Mn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 11, 2021
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LINDA JONES, * No. 17-1486V
*
Petitioner, * Special Master Sanders
v. *
*
SECRETARY OF HEALTH * Stipulation for Award; Influenza (“Flu”)
AND HUMAN SERVICES, * Vaccine; Transverse Myelitis (“TM”)
*
Respondent. *
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Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Althea W. Davis, United States Department of Justice, Washington, DC, for Respondent.
DECISION!
On October 10, 2017, Linda Jones (“Petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program.” 42 U.S.C. §§ 300aa-10 to -34 (2012).
Petitioner alleged that the Influenza (“flu”) vaccine she received on September 17, 2015, caused
her to suffer from Transverse Myelitis (“TM”). Pet. at 1, ECF No. 1. Petitioner further alleged that
her injury lasted for more than six months. /d. 7 29.
On July 27, 2021, the parties filed a stipulation in which they state that a decision should
be entered awarding compensation to Petitioner. Stipulation { 7, ECF No. 72. The parties state that
“Respondent denies that the flu vaccine caused [P]etitioner’s [TM] or any other injury or her
current condition.” Jd. 7 6. Nevertheless, the parties agree to the joint stipulation, attached hereto
as Appendix A. See id. 7 7. 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. A lump sum of $233,689.62 (which amount includes $63,300.19 for Year One
' 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).
* National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
Life Care Plan expenses, $5,389.43 for past unreimbursed expenses and
$165,000.00 for Lost Wages and Past and Future Pain and Suffering) in the
form of a check payable to [P]etitioner; and
B. An amount sufficient to purchase the annuity contract described in the
paragraph 10 [of the attached stipulation], paid to the life insurance company
from which the annuity will be purchased [ ].
The above amounts represent compensation for all damages that would be
available under 42 U.S.C. § 300aa-15(a).
Id. 1 8.
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.*
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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
LINDA JONES, )
)
Petitioner, ) No. 17-1486V
) Special Master
Vv. ) Herbrina Sanders
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Linda Jones, 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 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 her influenza vaccine on September 17, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained the first symptom or manifestation of transverse
myelitis (“TM”) several weeks after she received the flu vaccine. Petitioner further alleges that
she has suffered 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 by her or on her behalf as a result of her condition.
6. Respondent denies that the flu vaccine caused petitioner’s transverse myelitis 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 payment:
a. A lump sum of $233,689.62 (which amount includes $63,300.19 for Year One
Life Care Plan expenses, $5,389.43 for past unreimbursed expenses and $165,000.00 for
Lost Wages and Past and Future Pain and Suffering) 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”).
The above 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, At+p, Atr, 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
AAG, or AAA;
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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, pursuant to which the Life
Insurance Company will agree to make payments periodically to petitioner for the following
items of compensation:
a. For future unreimbursable insurance expenses (Out-of-Pocket Maximum),
beginning on the first anniversary of the date of judgment, an annual amount of $6,700.00
to be paid for the remainder of Linda Jones’s life, this amount increasing at the rate of four
percent (4%), compounded annually from the date of judgment;
b. For future unreimbursable Gabapentin, Cephalexin, Oxybutynin, Venlafaxine-ER,
and Tramadol expenses, beginning on the first anniversary of the date of judgment, an
annual amount of $240.00 to be paid for the remainder of Linda Jones’s life, this amount
increasing at the rate of four percent (4%), compounded annually from the date of
judgment;
C. For future unreimbursable Over-the-Counter Medication expenses, beginning on
the first anniversary of the date of judgment, an annual amount of $111.80 to be paid for
the remainder of Linda Jones’s life, this amount increasing at the rate of three percent (3%),
compounded annually from the date of judgment;
d. For future unreimbursable Physical and Occupational Therapy expenses, beginning
on the first anniversary of the date of judgment, an annual amount of $700.00 to be paid
for the remainder of Linda Jones’s life, this amount increasing at the rate of three percent
(3%), compounded annually from the date of judgment;
€. For future unreimbursable Orthotics/Splint expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $6.99 to be paid for the remainder
of Linda Jones’s life, this amount increasing at the rate of three percent (3%), compounded
annually from the date of judgment;
f. For future unreimbursable Incontinence Pad expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $479.94 to be paid for the
remainder of Linda Jones’s life, this amount increasing at the rate of three percent (3%),
compounded annually from the date of judgment;
g. For future unreimbursable Wheelchair expenses, beginning on the first anniversary
of the date of judgment, an annual amount of $31.46 to be paid for the remainder of Linda
Jones’s life, this amount increasing at the rate of three percent (3%), compounded annually
from the date of judgment;
' To satisfy the conditions set forth herein, in respondent’s discretion, respondent may purchase
one or more annuity contracts from one or more life insurance companies.
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h. For future unreimbursable Electric Scooter, battery, tires, and maintenance
expenses, beginning on the first anniversary of the date of judgment, an annual amount of
$999.30 to be paid for the remainder of Linda Jones’s life, this amount increasing at the
rate of three percent (3%), compounded annually from the date of judgment;
i, For future unreimbursable Shower Chair, handheld shower, bedrail, over-the-toilet
commode, and adaptive dressing equipment expenses, beginning on the first anniversary
of the date of judgment, an annual amount of $83.38 to be paid for the remainder of Linda
Jones’s life, this amount increasing at the rate of three percent (3%), compounded annually
from the date of judgment;
j. For future unreimbursable Assisted Living expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $50,040.00 to be paid up to the
anniversary of the date of judgment in the year 2027; then, beginning on the anniversary
of the date of judgment in the year 2027, an annual amount of $53,880.00 to be paid for
the remainder of Linda Jones’s life, all amounts increasing at the rate of four percent (4%),
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 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 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 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
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
expect to be made under any 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 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 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. § 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 petitioner resulting from, or
alleged to have resulted from the influenza vaccination administered on September 17, 2015, as
alleged by petitioner in a petition for vaccine compensation filed on or about October 10, 2017,
in the United States Court of Federal Claims as petition No. 17-1486V.
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. Ifthe 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.
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 vaccination caused petitioner’s
alleged transverse myelitis or any other injury or her 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
Respectfully submitted, ———__
ATTORNEY OF RECORD FOR
PETITIONER:
Korat CU ones chun
RONALD C. HOMER, ESQUIRE
Conway Homer, P.C.
16 Shawmut Street
Boston, MA 02116
(617) 695-1990
Rhomer@ccandh.com
AUTHORIZED REPRESENTATIVE OF
THE SECRETARY OF HEALTH AND
HUMAN SERVICES:
Debs Wahler, DM Se, WS, APA, ia
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Healthcare Systems Bureau
Health Resources and Services
Administration
U.S. Department of Health
and Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
Dated: orhetiwor /
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
HEATHER L. PEARLMAN
Aetiag Deputy Director
Torts Branch
Civil Division
U. S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
A IM4+ee US alin, Dawa
ALTHEA WALKER DAVIS
Senior Trial Counsel
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 616-0515
Althea.Davis@usdoj.gov