# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15

- 72 V Filed: December 10, 2015 UNPUBLISHED

* * * * * * * * * * * * * * * * * * * * * * * * * * * * LESLIE HAMMOND

, *

* Petitioner, * Joint Stipulation on Damages ;

* Influenza (“Flu”) Vaccine;

* Guillain

- Barré Syndrome (“GBS”); SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, *

* Respondent. *

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * Lawrence Cohan, Anapol Weiss, Philadelphia, PA

, for petitioner. Christine Becer

, U

. S

. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION 1

Dorsey

, Chief Special Master:

On January 26, 2015

, Leslie Hammond (“ p etitioner ”) 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 he suffered Guillain

Barré S yndrome (“GBS”) after receiving the influenza vaccine on September 19, 2013

. Petit ion at 1 ; see also Stipulation , filed Dec . 10 , 2015

, ¶ ¶ 1

- 2 , 4

. Petitioner further alleges that he received the vaccinatio n in the United S t ates, that he has suffered the effects of his injury for more than six month, and that he has not received compensation for his vaccine related injury . Pe tition

, ¶¶ 3, 23, 25

- 26 ; see also Stipulation ¶ ¶ 3, 5.

“ Respondent denies that the influenza vaccine caused petitioner to suffer from GBS or any other injury

. ” Stipulation

, ¶ 6.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, 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 (2006)) . 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.

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 subpara graph of 42 U.S.C. § 300aa (2012 ).2

Nevertheless, o n December 10, 2015 , the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. 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 stipulated t hat petitioner shall receive the following compensation:

a. A lump sum of $ 2 00,000.00
, in the form of a check payable to petitioner

.

b. An amount sufficient to purchase the annuity contract described in paragraph 10 of the attached stipulation , paid to the life insurance company from which the annuity will be purchased

.
Stipulation, 8. This amount represents compensation for all items of damages that would be available under 42 U.S.C. § 300aa

- 15(a). Id

.
The undersigned approves 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/Nora Beth Dorsey Nora Beth Dorsey 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

____________________________________ ) LESLIE HAMMOND

, ) ) Petitioner, )

v. ) ) No. 1 5

- 72 V S ECRETARY OF HEALTH ) Chief Special Master Dorsey AND HUMAN SERVICES ) ) Respondent. ) ____________________________________)

STIPULATION

The parties hereby stipulate to the following matters:

1. Leslie Hammond , petitioner, filed a pet ition 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 vaccine, wh ich vaccine is contained in the Vaccine Injury Table (the “Table”),

42 C.F.R. § 100.3 (a).

2. Petitioner received the influenza vaccination on September 19, 2013

.

3. The vaccination was administered within the United States.

4. Petitioner alleges tha t he su ffered Guillain

- Barre Syndrome (“GBS”) as a result of

receiving the influenza vaccine

.
5. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on his behalf as a result of his condition.

6. Respo ndent denies that the influenza vaccine caused petitioner to suffer from GBS or

any other injury

. Case 1:15-vv-00072-UNJ Document 22 Filed 12/10/15 Page 1 of 72 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 recei ve 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 $ 200,000.00

, in the form of a check payable to petitioner . This amount represents compensation for all damages that would be available under 42 U.S.C. §300aa

- 15(a), except as set forth in paragraph 8.b.;

b

. An amount sufficient to purchase the annuity contract described in paragraph 10 below, paid to the life insurance company from wh ich the annuity will be purchased (the “Life Insurance Company”).

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, A+p, A+r, or A+s;

b. Moody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, 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 Lif e Insurance Company for the benefit of petitioner, Leslie Hammond , pursuant to

which the Life Insurance Company will agree to make payments periodically to Leslie

Hammond for all remaining damages that would be available under 42 U.S.C. §300aa

- 15(a), as Case 1:15-vv-00072-UNJ Document 22 Filed 12/10/15 Page 2 of 73 fo llows:

Beginning as soon as practicable after the date of judgment, $5,677.70 per month for life only.

The payments provided for in this paragraph 10 shall be made as set forth above. P etitioner will

continue to receive the annuity payments from the Lif e Insurance Company only so long as he,

Leslie Hammond , 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 Leslie Hammond’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 partie s 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 h erein, 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

respe ct 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 app lication, 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 h is attorney represent that compensation to be provided pursuan t to

this Stipulation is not for any items or services for which the Program is not primarily liable Case 1:15-vv-00072-UNJ Document 22 Filed 12/10/15 Page 3 of 74 under 42 U.S.C. § 300aa

- 15(g), to the extent that payment has been made or can reasonably be

expected to be made under any State compensation programs, ins urance policies, Federal or

State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C.

§ 1396 et seq.)), or by entities that provide healt h services on a pre

- paid basis.

14. Payments made pursuant to paragraph 8 and any a mounts 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 contempla ted 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 his

individual capacity, and on behalf of h is 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 Com pensation

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 influenz a vaccination administered on September 19

, Case 1:15-vv-00072-UNJ Document 22 Filed 12/10/15 Page 4 of 75 201 3 , as alleged by petitioner in a petition for vaccine compensation filed on or about January

26, 2015 , in the United States Court of Federal Claims as petition No. 1 5

- 72 V.

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 t he parties.

18. If the special master fails to issue a decision in complete conformity with the terms

of this Stipulation or if the Cou rt 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 th e 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 hereb y 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 sh all not be construed as an admission by the United States or the

Secretary of Health and Human Services that the influenza vaccine caused petitioner to suffer

from GBS or any other injury

. Case 1:15-vv-00072-UNJ Document 22 Filed 12/10/15 Page 5 of 76 2 2

. All rights and obligations of petitioner hereunder shall appl y equally to petitioner’s

heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

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/ Case 1:15-vv-00072-UNJ Document 22 Filed 12/10/15 Page 6 of 7Case 1:15-vv-00072-UNJ Document 22 Filed 12/10/15 Page 7 of 7