# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17 -186V UNPUBLISHED

CARA PEDEN , Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Chief Special Master Corcoran Filed: June 12, 2020 , Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza (Flu) Vaccine; Guillain

- Barre Syndrome (GBS)

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner. Robert Paul Coleman, III , U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION 1 

### On February 8, 20 17 , Cara Peden filed a filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq

. , 2 

### (the “Vaccine Act” )

. Petitioner alleges that she suffered Guillain

- Barre Syndrome (“GBS” ) as a result of her October 9, 2015 influneza (“flu ” ) vaccination. Petition at 1 ; Stipulation , filed June 9, 2020 , ¶¶ 2, 4

. Petitioner further alleges that the vaccine was administered within the United States, that s he suffered the residual effects of h er injury for more than six months, and that there has been no prior award or settlement of a civil action on h er behalf as a result of h er injury. Stipulation at ¶¶ 3

-5; see Petition at ¶¶2 , 30

-32

. “Respondent denies that the flu vaccine caused petitioner to suffer from GBS or any other injury or her current condition

. ” Stipulation at ¶ 6. Nevertheless, o n June 9, 2020 , the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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, I agree that the identified material fits within this definition, I will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012 ).2 

### reasonable and adopt it as my decision awarding damages, on the terms set forth therein. Pursuant to the term s stated in the attached Stipulation , I award the following compensation:

a. A lump sum of $ 133,708.01, which amo unt represents compensation for first year life care expenses ($63,708.01) and combined pain and suffering and past unreimbursable expenses ($70,000.00), in the form of a check payable to Petitioner

. b. 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 (the "Life Insurance Company"). Stipulation at ¶ 8. This amount represents compensation for all items of damages that wo uld be available under § 15 (a). Id

. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision. 3 

### IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

3 Pursuant to Vaccine Rule 11(a ), entry of judgment can be 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

CARA PEDEN, ) ) ) ) ) ) ) ) 

### ) ) Petitioner, V. SECRET ARY OF HEALTH AND HUMAN SERVICES Respondent. No. 

### l 7-186V (ECF) Chief Special Master Corcoran

STIPULATION The parties hereby stipulate to the following matters: 1. Cara Peden, 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 ofthe 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 or about October 9, 2015. 3. The vaccination was administered within the United States. 4. Petitioner alleges that she suffered from Guillain-Barre Syndrome ("GBS") as a result ofreceiving the flu vaccine, and further alleges that she experienced the residual effects of this condition 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 ofher 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)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payments:

a. A lump sum of $133,708.01, which amount represents compensation for first year life care expenses ($63,708.01) and combined pain and suffering and past unreimbursable expenses ($70,000.00), in the form of a check payable to petitioner; 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-l 5(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 ofthe following ratings from two ofthe 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, 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 ofHealth and Human Services agrees to purchase an annuity contract from the Life Insurance Company for the benefit ofpetitioner, Cara Peden, pursuant to which the Life Insurance Company will agree to make payments periodically to petitioner as follows for all

2remaining damages that would be available under 42 U.S.C. §300aa-15(a):

a. For future unreimbursable health insurance maximum out ofpocket expenses, beginning on the first anniversary of the date of judgment, an annual amount of $4,000.00 to be paid up to the anniversary ofthe date of judgment in year 2052, increasing at the rate of three percent (3%), compounded annually from the date of judgment. b. For future unreimbursable Medicare Supplement and Medicare Part D expenses, beginning on the anniversary ofthe date of judgment in year 2052, an annual amount of $8,488.52 to be paid for the remainder ofpetitioner's life, increasing at the rate of three percent (3%), compounded annually from the date of judgment.

c. For future unreimbursable palliative therapy expenses, beginning on the first anniversary ofthe date of judgment, an annual amount of $720.00 to be paid up to the second anniversary of the date of judgment. Then, beginning on the second anniversary of the date of judgment, an annual amount of $240.00 to be paid up to the anniversary of the date of judgment in year 2052, all amounts increasing at the rate of three percent (3%), compounded annually from the date of judgment. d. For future unreimbursable strength training expenses, beginning on the first anniversary of the date of judgment, an annual amount of $1,428.00 to be paid for the remainder ofpetitioner's life, increasing at the rate of three percent (3%), compounded annually from the date of judgment.

e. For future unreimbursable Scooter, Scooter Battery, Scooter Maintenance, Scooter Lift, and Cane expenses, beginning on the first anniversary of the date of judgment, an annual amount of $599.08 to be paid for the remainder ofpetitioner's life, increasing at the rate of three percent (3%), compounded annually from the date of judgment. f. For future unreimbursable Latex Glove, Bed Pad, and Cold Pack expenses, beginning on the first anniversary ofthe date of judgment, an annual amount of $344.90 to be paid for the remainder ofpetitioner's life, increasing at the rate of three percent (3%), compounded annually from the date of judgment. g. For future unreimbursable Air Purifier, Air Purifier Filter, Nebulizer, Memory Foam Mattress, and Adjustable Bed expenses, beginning on the first anniversary of the date of judgment, an annual amount of $396.72 to be paid up to the anniversary of the date of judgment in year 2029. Then, on the anniversary ofthe date of judgment in year 2029, a lump sum of $596.70. Thereafter, beginning on the anniversary ofthe date of judgment in year 2030, an annual amount of$416.72 to be paid for the remainder ofpetitioner's life, all amounts increasing at the rate of three percent (3%), compounded annually from the date of judgment. h. For future unreimbursable Travel to Cleveland Clinic and Companion Travel to Cleveland Clinic expenses, beginning on the first anniversary ofthe date of judgment, an 

### 3annual amount of $8,280.00 to be paid for the remainder ofpetitioner's life, increasing at the rate of three percent (3%), compounded annually from the date of judgment. i. For future unreimbursable Home Health Aide expenses, beginning on the first anniversary of the date of judgment, an annual amount of$36,400.00 to be paid up to the anniversary ofthe date of judgment in year 2052. Thereafter, beginning on the anniversary of the date of judgment in year 2052, an annual amount of $41,600.00 to be paid for the remainder ofpetitioner's life, all amounts increasing at the rate ofthree percent (3%), compounded annually from the date of judgment. j. For future unreimbursable Stair Lift expenses, beginning on the first anniversary ofthe date of judgment, an annual amount of $269 .50 to be paid for the remainder of petitioner's life, increasing at the rate ofthree percent (3%), compounded annually from the date of judgment. At the sole discretion ofthe 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, Cara Peden, 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 ofpetitioner'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 ofHealth 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 ofAmerica are released from any and all obligations with

4

### 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}(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. 13. Petitioner and her attorney represent that they have identified to respondent all known sources ofpayment 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 ofthe 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 ofthis 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 ofthe annuity contract, will be used solely for petitioner's benefit as contemplated by a strict construction of42 U.S.C. §§ 

### 300aa15(a) and (d), and subject to the conditions of42 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 ofher heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary ofHealth and Human Services from any and all actions or causes of action

5

### (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 ofpetitioner resulting from, or alleged to have resulted from, the flu vaccination administered on or about October 9, 2015, as alleged by petitioner in a petition for vaccine compensation filed on or about February 8, 2017, in the United States Court of Federal Claims as petition No. 17-186V. 17. Ifpetitioner 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 ofFederal Claims fails to enterjudgment in conformity with a decision that is in complete conformity with the terms ofthis 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 ofthe 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 ofthe parties' respective positions as to liability and/or amount of damages, and further, that a change in the nature ofthe injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement.

620. 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 disabilities. 22. All rights and obligations ofpetitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.



### I I I I 

### END OF STIPULATION

7

### Respectfully submitted,

- 

### ---- 

# ----------~--' PETITIONER:

ATTORNEY OF RECORD FOR "' PETITIONER:

# ~ MAXIMILLIANLMULLER,ESQ. MULLER BRAZIL, LLP 715 Twining Road, Suite 208 Dresher, PA 19025 Tel: (215) 885-1655 

### C Deputy Director Torts Branch Civil Division U.S. Department 

### ofJustice .·· P.O. Box 146

. _ , _ :'. Benjamin Franklin Station , '., ·,. 

# .,h -'. _- Washington, DC 200~-014O--,~,-,.~----;-z.-+.,...