In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 19, 2017
* * * * * * * * * * * * *
ELIZABETH NEELEY, * UNPUBLISHED
*
Petitioner, * No. 16-251V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Joint Stipulation; Haemophilus
AND HUMAN SERVICES, * Influenzae Type B (“Hib”),
* Hepatitis A, Hepatitis B, and
Respondent. * Tetanus-Diphtheria-Acellular
* Pertussis (“TDaP”) Vaccinations;
* * * * * * * * * * * * * Guillain-Barré Syndrome (“GBS”).
Michael G. McLaren, Black McLaren, et al., PC, Memphis, TN, for petitioner.
Amy P. Kokot, United States Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On February 23, 2016, Elizabeth Neeley (“petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to 34
(2012).2 Petitioner received the haemophilus influenzae type B (“Hib”), hepatitis A, hepatitis B,
and tetanus-diphtheria-acellular pertussis (“TDaP”) vaccinations on or about February 20, 2015.
Petitioner alleges that these vaccinations caused her to develop Guillain-Barré Syndrome
(“GBS”) and/ or other neurological and physical impairments, with residual effects lasting for
more than six months.
1
Because this decision contains a reasoned explanation for the action in this case, the undersigned intends to post it
on the website of the United States Court of Federal Claims, pursuant to the E-Government Act of 2002, see 44
U.S.C. § 3501 note (2012). The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the
decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the
court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14
days, the decision will be posted on the court’s website. Id.
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.
On July 18, 2017, the parties filed a stipulation in which they state that a decision should
be entered awarded compensation to petitioner. Joint Stipulation (ECF No. 38). Respondent
denies that the aforementioned vaccines are the cause of petitioner’s alleged GBS and/ or any
other injury or her current condition. Id. at ¶ 6. 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 in compensation:
1) A lump sum of $132,656.35, which amount represents compensation for first-
year life care expenses ($12,656.35) and pain and suffering and past
unreimbursable expenses ($120,000.00) in the form of a check payable to
petitioner, Elizabeth Neeley.
2) An amount sufficient to purchase the annuity contract described in paragraph
10 of the stipulation attached hereto as Appendix A, paid to the life insurance
company from which the annuity will be purchased (the “Life Insurance
Company”).
Joint Stipulation at ¶ 8. These amounts represent compensation for all damages
that would be available under 42 U.S.C. § 300aa-15(a).
The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the
terms of the parties’ stipulation.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
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 TlI.E UNlTED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
BLIZABETH NE:ELEY, )
)
Petitioner, )
) No. 16-25 t V (ECF)
v. ) Speciai Master Gowen
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. }
~~~~~~---'-'--~~~~~~)
SIJ.P!JLATION
The parties hereby stipulate to the followi11g matters:
I. Elizaberh Neeley, petitioner, filed a petitio11 for vaccine com1Jcnsation 11.ndcr the
Nat.ional Vaccine injury Compensation Program, 4/. U.S .C. §§ 30-0aa- IOto ~34 (lhe ''Vaccine
Program"). The petition seeks colllpensmion fer injuries allegedly related to petitioner's receipt
of the Hacmophilus jnflucnz.ac type b ("Hib.'), hepatilis A, hepatitis B, anti/or tctnnus-diphtheria-
.ncellular pertussis {''Td~p'") vaccines, which vaccines are contained in the Vaccine Injury Table
(the ·'Table"), 42 C.f.R. § !00.3(a).
2. Petitioner received I-lib, hepatitis A, hepatitis B, and Tdop vaccinati0ns on or about
February 20, 20 15. 1
3. The vaccines were aronry 20, ?.O l S, (Ire the cause of petitioner's alleged GBS 11nd/ol' tiny
otlm· injury or her cun:ent condition.
7. Maintaining their above-stated positions 1 the pm1lcs nevertheless now agree that the
issues between them shall be settled and that a decision should b: entered awarding the
compensation described in paragrnph 8 of this Stipulation.
8. As soon as practic.able aft.er :t1i entry <>f judgme1ll reflec ting a decision consistent with
lhe terrns of tbis StipuJalion, and after pctitior\er has filed an election to receive compcllSalim1
pursuant to 42 U.S.C. § 300:aa-2 l (a)( I). the Secretary of Health and Human Services will issue
the following vaccl11c compen saLion payments:
a. A lump sum of$ I 32,656.35, which amount represents coinpcnsaiion for first-yeaJ'
life-care expenses ($12.,656.35) and pain and suffering and past unreimbursable
expenses ($120,000.00) in the form ofo check payable to petitioner~ and
l>. An amount sufficient to purchase the a1111uity contract dcscrihed in paragraph I 0
below, paid to the life insurnncc company from which the nnnuily will be
ptuchased (the ''Ute Insurance Company'').
9. Th1; Life Insurance Company must have a minimum of$250,000,000 capital and
surpluS,, exclusive of t1 11y mandatory secmity Vllluation reserve. The Life J11sura.11ce Company
must have one ofthc following ratings from two oftlic following rating organizations:
IL A.M. Best Comp&ny: A-+ +. A+, A·r·g. A+p, A+r, or A+s;
h. Moody's lrwestor Service Claims Paying Ralinir A a31 Aa2, Aa 1, or Aau;
2
c. Standard and roor's Corpora1iot1 \nsurer Claims-Paying Ability Rating: AA~,
AA, AA+, ()r AAA;
d. Fitch Credi! l~ating Company, Insurance Com pally Claims Paying Abilhy Racing:
/\A -, AA, AA+, or /\/\A,
l 0. The Secretary of Heallh and Human Services agrees 10 pt1rch£1se an annl1ity co11tract
from the Lite lnsuronce Company for the bc.nefit of peti1ioner, Elizabeth Neeley, pursuant 10
which the Li fc Insurance Company will agree lo make payments pcricdically to petitioner as
follows:
a. For future unreimbur.s11ble Medigap expenses, bcginn ing on the first anni versary
of the date ofjlldgmeot, all annual amount of$2,445.0(l to be paid for the
remainder of petition.:l''S life.. incr~io g :ll lhe rate ( ) f five percent (5%),
cornpotmded annually from the date ofjud~ment
b. For full1fe unreimbursabJe Walker. Shower Chuir, WhcelchairiScootcr
Mnintenance, and Medical Alcrc expenses, beginning on the first anniversary of
the date CJfjudgment, nn annual nmount of$589.S9 to be paid for the remainde1· of
petitioner's life, increasing at the rate of four percent (4%), compounded annually
from the da1e ofjudgment.
c, For folure unrcimbur.sable Scooter and Scooter Lift cxpcnsc.s, on the annivers«ry
of the date ofJudgmc.nr in year 2020, a lump sum of $2, l 99.QO. Thercaflcr,
beginning on the anniversary of Che dale of judgment in year 202 1, an annual
amount of$ I7 I.29 to be paid for the remaindc, of' petitioner's life, all a1noums
increasing at the rate of four percent (4%). compounded airnually fron1 the date of
judgment.
d. For future unreirnhursal;ile Attendant Care expenses, begi1u1ing on th ~ first
nnniversary of the dote ofj udgment, un ;ummtl amourll of $6,552.00 to be (:'!lid up
to the anniversary of the dnte ofjudgmt:nt in yea!' 2025. Thcrc.af\er, beginning (.)JI
the a11nivcrsary .of the date of j udgm ent in year 1025, an :innual mnou ut of
$10,920.00 to be paid for the remainder ofpet~tioner's life, all amounts increasing
at the rate of fo ur percent (4%). compounded annually from the date of j udgn1e.nt.
At the sole discretion of the Secretary of Health and I luman Services, chc periodic
payments set forth in porngraph 10 <1bovc. rnny be provided to petitioner in momhly, quarterly,
annual or otl)et inslallments. The "annuli! amounts" ::;ct forth above describe only the total yearly
~urn to be puid to petitioner and do not require tha.1 the payment be made in one 11nnnal
3
installment. Petitioner will continue 10 receive lhe annui ty payments from the Li fe Insurance
Company only so long us she, Eliwb~lh Neeley, is nlive at the time that a panicutnr 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 Elizabeth Neeley' s death.
l l. The annuity co1,tracl will be owned solely and ex.cl1.1 stvely by the Secretary of Heaith
and Human Services and will be purchased as soon ns practicable followi ng the entry ofa
judgtTicnl in conformity with this Stipulation. The pariies stipulate and agree that the Sccrctnry
of Health and Human Services and lhe United States of America arc not responsible for tht:
pnymcnt of any sums other lhnn the amounts set forth in paragraph 8 herein and the amounts
awarded pursuant to paragraph 12 herein, and 1hat they do not guarantee or insure any of the
future annuity payments. Upon the purchase of the an!luity contract, t'ne SecretMy of HeaUh and
Human Services and the United States of America are released from any and all obligations with
respect to foture annuity payment:;.
12. As soon as prncticable after 1bc entry ofjudgment on entitlement in this c:nse. :;inc
aftc:r pclitio11er hus filed both a proper and timel y dcction to receive compensatio11 purnuanc to
42 U.S.C. § 300fla-2 1(a)( I ). ond un application, the parli~s will submit to further proceedings
before the special mnsler toaward reasonable attorneys' fees and costs incurred in proceeding
upon this petition.
IJ . Petitioner and Iler attorney represent that they have idemif!cd to respondent all
known sources (Jf paymc:nt for Items or services for which the Program 1s not piimnrily liable
under 42 U.S.C. § 300aa- I S(g), including State compensation programs, insurarlct! p<)licics,
Federal or State health benefits programs (otller than Title XIX of the Social Security Act (42
U.S.C. § 1396 ct seq.)), or entities chm provide hca.lth serYices on a. p1~·p:1id basis.
4
14. Paymt!nt rnadc pursuant to paragraph 8 of this Stipulation) and any amount awarded
pursuant to patagra1lh 12 of this Stipulation, will be mnde in accordnncc with 42 U.S.C. § 300aa-
I S(i), subject to the availability of sufficient Statutofy funds.
15. Tue parties and their attomeys further agree and stipulate lhat, except for any award
for attorneys' fees and litigation costs, and past unrcimbursable expenses, the money provided
pursuant to this Stipulation will be used solely for the b¢nefit of petitioner ;is contemplated by 11
strict construction of 42 U.S.C. § 300aa- I 5(a) and (d}, and subjccl to the c:ondith>n.s of 42 U.S.C.
§ 300aa· 15(g) ancl (h).
! 6. In retu(n for. the payments described in paragraphs Kand I 2, petitioner, in her
individual capacity, and on behalf of her heirs, executors, l\dministrntor1>, successors nnd/or
assigns, docs forever irrevocably and unconditionally release, acquil and discboq~e the United
Stites and the Sccrecary of Health and Human Services from any and all aclio!ls 01· c0uses of
action (including agree111e11L<;., ju