Sn the Gunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: June 1, 2022
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TENEISHA C. DAVIS, * UNPUBLISHED
*
Petitioner, * No. 18-1763V
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V. * Special Master Dorsey
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SECRETARY OF HEALTH * Decision Based on Stipulation;
AND HUMAN SERVICES, * Influenza (“Flu”) Vaccine;
* Guillain-Barré Syndrome (“GBS”).
Respondent. *
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Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.
Christine M. Becer, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION BASED ON STIPULATION'
On November 15, 2018, Teneisha C. Davis (“Petitioner”) filed a petition in the National
Vaccine Injury Compensation Program.” Petitioner alleged that as a result of an influenza (“flu”)
vaccine on October 16, 2017, she developed Guillain-Barré syndrome (“GBS”). Petition at 1
(ECF No. 1).
On June 1, 2022, the parties filed a stipulation recommending an award of compensation
to Petitioner. Stipulation (ECF No. 70). Respondent denies that the flu vaccine caused
Petitioner to suffer GBS or any other injury or her current condition. Id. at {| 6. Nevertheless,
' Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is required to post it 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). This means the Decision will
be available to anyone with access to the Internet. 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.
* 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. § 300aa.
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 $417,265.15, which amount represents compensation for first
year life care expenses, lost earnings, pain and suffering, and past
unreimbursable expenses in the form of a check payable to Petitioner; and
(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.
This amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a). Stipulation at J 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.*
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
> 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
TENEISHA C. DAVIS, )
)
Petitioner, )
Vv. )
) No. 18-1763V
SECRETARY OF HEALTH ) Special Master Dorsey
AND HUMAN SERVICES, ) ECF
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Teneisha C. Davis, 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 vaccination on October 16, 2017.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered from Guillain-Barré 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 $417,265.15, which amount represents compensation for first year life
care expenses, lost earnings, pain and suffering, and past unreimbursable expenses 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. A.M. Best Company: A++, A+, A+g, Atp, Atr, or Ats;
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, Teneisha C. Davis, pursuant to
which the Life Insurance Company will agree to make payments periodically to petitioner as
follows for the following items of compensation:
a. For future unreimbursable Insurance Maximum out of Pocket expenses, beginning on
the first anniversary of the date of judgment, an annual amount of $2,000.00 to be paid up
to the anniversary of the date of judgment in year 2043, increasing at the rate of three
percent (3%), compounded annually from the date of judgment.
b. For future unreimbursable Medicare Part B Deductible expenses, beginning on the
anniversary of the date of judgment in year 2043, an annual amount of $233.00 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.
c. For future unreimbursable Medigap and Medicare Part D expenses, beginning on the
anniversary of the date of judgment in year 2043, an annual amount of $2,633.60 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
she, Teneisha C. Davis, 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 Teneisha C. Davis’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 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 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 or death of petitioner resulting
from, or alleged to have resulted from, the flu vaccination administered on October 16, 2017, as
alleged by petitioner in a petition for vaccine compensation filed on or about November 15, 2018
in the United States Court of Federal Claims as petition No. 18-1763V.
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.
21. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the flu vaccine caused petitioner’s alleged GBS 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,
PETITIONER:
7enecha Dawes
TENEISHA C. DAVIS
ATTORNEY OF RECORD FOR
as ie C
JIMMY A-ZGHESB, ESQ.
Zgheib Sayad, P.C.
75 South Broadway, 4" Floor
White Plains, New York 10601
Tel: (914) 729-1110
jim@vaccinelawyers.com
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
George R. Grimes -_ Digitally signed by George R.
S 1 4 Grimes -S14
CDR GEORGE REED GRIMES, MD, MPH
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: G/ l / ar
Date: 2022.05.10 16:28:14 -04'00'
-
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
Mp eh Oe Ln
HEATHER L. PEARLMAN
Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
bam
CHRISTINE M. BECER
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-3665
christine.m.becer@usdoj.gov