# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 12

- 613 V

Filed: September 10, 2014

Not for P ublication

*************************************

PATRICK EDWARDS and JEANNETTE * EDWARDS, as Legal Representatives of * A.E., *

*

Petitioner s
, *

* Damages decision based on stipulation;

v. * influenza (flu) v accine; seizures; acute

* demyelinating encephalomyelitis (ADEM)

SECRETARY OF HEA LTH * AND HUMAN SERVICES, *

* Respondent. *

*

************************************* Mindy Michaels Roth

, Glen Rock, NJ

, for petitioner s

. Alexis B. Babcock , Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING DAMAGES 1

On September 10 , 2014 , the parties filed the attached stipulation in which they agreed to

settle this case and described t he settlement terms. Petitioner s allege that their daughter, A.E.

, d eveloped s eizures secondary to acute demyelinating encephalomyelitis ( “ ADEM ” ) a s a result of

her receipt of influenza (“flu”) vaccine on September 30, 2009

. Petitioners further al lege that

A.E. experien c ed the residual effects of this injury for more than six months. Respondent denies

1 Because this unpublished decision contains a reasoned exp lanation for the special master’ s action in this case, the special master intends to post this unpublished decision on the United States Court of Federal

Claims’ website, in accordance with the E

- Government Act of 2002, Pub. L. No. 107

- 347, 116 Stat. 2899, 2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the public u nless they contain trade secrets or commercial or financial information that is privileged and confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is filed, peti tioner s have 14 days to identify and move to delete such information prior to the document ’ s disclosure. If the special master, upon review, agrees that the identified material fits within the banned categories listed above, the special master shall

delete such material from public access.2

that the flu vaccine caused A.E. ’ s ADEM or her current disabilities

. Nonetheless, the parties agreed to resolve this matter informally.

The undersigned finds the terms of the stipulation to be reasonable. The court hereby adopts the parties ’ said stipulation, attached hereto, and awards compensation in the amount and

o n the terms set forth therein. Pursuant to the stipulation, the court awards :

a. a lump sum of $ 467

, 885.98 , representing compensation for f irst year life care expenses ($57,570.98), partial lost future earnings ($227,720.41), and pain and suffering ($182,594.59). The award shall be in the form of a check for $ 467,885.98 made payable

to petitioner s as guardian(s)/conservator(s) of the estate of A.E. for the benefit of A.E ; and

b. a lump sum of $46,815.80 , representing compensation f or past unreimbursable expenses

. The award shall be in the form of a check for $46,815.80 made payable to petition ers, Patric k Edwards and Jeannette Edwards ; and

c. an amount sufficient to purchase the annuity contract described in paragraph 10 of the attached stipulation. The award shall be paid to the life insurance company from which the annuity will be purchased.

In the absence of a motion fo r review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. 2

IT IS SO ORDERED.

Dated: September 10, 2014 s/ Laura D. Millman

Laura D. Millman Special Master

2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party , either separately or jointly, filing a notice renouncing the right to seek review.I N THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

PATRICK EDWARDS and JEANNETTE

EDWARDS, as legal representatives of

A .E.

,

Petitioners

,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. 12

- 613 V Special Master Millman

STIPULATION

The parties hereby stipulate to the following matters:

1. On behalf of their daughter, A .E.

, petitioners filed a petition for vaccine compensation

under t he 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 A.E.’s

receipt of the influenza (“ Flu ”) vaccine, which vaccine is contained in the Vaccin e Injury Table

(the “Table”), 42 C.F.R. § 100.3 (a).

2. A.E. received h er inf lu enza immunization on September 30, 2009

.

3. The vaccine was administered within the United States.

4. Petitioners allege that A .E. sustained the first symptom or manifesta tion of h er injury

within one week of h er immunization. They further allege that s he developed seizures secondary

to acute demyelinating encephalomyelitis (ADEM) as a sequela of this injury, and that A.E.

experienced residual effects of this injury for mo re than six months.

5. Petitioners represent that there has been no prior award or settlement of a civil action

for damages on behalf of A .E. as a result of h er condition.6. Respondent denies that the vaccine caused h er ADEM and her current disabili ties.

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 petitioners ha ve filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa

- 21(a)(1), the Secretar y of Health and Human Services will issue

the following vaccine compensation payments:

a . A lump sum of $ 467,885.98 , which amount represents compensation for first year life care expenses ($ 57,570.98 ), partial lost future earnings ($ 227,720.41 ), and pain a nd suffering ($ 182,594.59 ), in the form of a check payable to petitioners as guardian(s)/conservator(s) of the estate of A.E. for the benefit of A.E . No payments

shall be made until petitioners provide respondent with documentation establishing that they have been appointed as the guardian(s)/conservator(s) of A.E. ’s estate;

b . A lump sum of $ 46,815.80 , which amount represents compensation for past unreimbursable expenses , in the form of a check payable to petitioners , Patrick Edwards

and Jeanette Edwa rds;

c. 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”).

9. The Life Insurance Company must have a minimu m of $250,000,000.00 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.

210. The Secretary of Health and Human Services agrees to purchase an annuity contract

from the Life Insurance Company for the benefit of A.E. , pursuant to which the Life Insurance

Company will agree to make payme nts periodically to petitioners , as the court

- appointed

guardian(s)/conservator(s) of the estate of A

. E. for the following items of compensation:

a. For future unreimbursable Health Insurance MOP and Midazolam expenses, beginning

on the first anniversar y of the date of judgment, an annual amount of $ 6,471.00 to be paid up to the anniversary of the date of judgment in year 2071. Thereafter, beginning on the anniversary of the date of judgment in year 207 1 , an annual amount of $471.00 to be paid

for the r emainder of A.E. ’s life, all amounts increasing at the rate of f ive percent ( 5 %), compounded annually from the date of judgment.

b. For future unreimbursable Medicare Part B Premium , Medigap F, and Medicare P art D

e xpenses, beginning on the anniversary of the date of judgment in year 2071 , an annual amount of $ 7,284.38 to be paid up to the anniversary of the date of judgment in year 2076. Thereafter, beginning on the anniversary of the date of judgment in year 2076, an annual amount of $8,541.14 to be pai d for the remainder of A.E. ’s life, all amounts increasing at the rate of f ive percent ( 5 %), compounded annually from the date of judgment.

c. For future unreimbursable Tutoring expenses , beginning on the first anniversary of the date of judgment, an annu al amount of $ 6,900.00 to be paid up to the anniversary of the date of judgment in year 20 25, increasing at the rate of f our percent ( 4 %), compounded annually from the date of judgment.

d. For future unreimbursable Medic

- Alert System, Video Monitoring, an d Transportation

expenses, on the anniversary of the date of judgment in year 2024 , a lump sum of $1,069.98. Thereafter, beginning on the anniversary of the date of judgment in year

2025 , an annual amount of $ 710.00 to be paid for the remainder of A.E. ’ s life, all

amounts increasing at the rate of four percent ( 4 %), compounded annually from the date of judgment.

e. For future unreimbursable Skilled Nursing and Respite expenses, beginning on the first anniversary of the date of judgment, an annual amount o f $ 43,800 .00 to be paid up to the anniversary of the date of judgment in year 2022 , increasing at the rate of four percent ( 4 %), compounded annually from the date of judgment.

f. For future unreimbursable Service Dog Training expenses, on the anniversary of the date of judgment in year 2022 , a lump sum of $3,000.00. Thereafter, beginning on the anniversary of the date of judgment in year 202 3 , an annual amount of $ 300 .00 to be paid

for the remainder of A.E. ’ s life, all amounts increasing at the rate of fo ur percent ( 4 %), compounded annually from the date of judgment.

3g . For future unreimbursable Service Dog Maintenance expenses, beginning on the anniversary of the date of judgment in year 2022 , an annual amount of $ 1,200.00 to be paid for the remainder of A.E. ’s life , 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 the petitioners in monthly, quarterly, annual or other installments. The “annual

amounts” set forth above describe only the total yearly sum to be paid to the petitioners and do

not require that the payment be made in one annual installment. The petitioners will continue to

receive the annui ty payments from the Life Insurance Company only so long as A.E. is alive at

the time that a particular payment is due. Written notice to the Secretary of Health and Human

Services, the trustee, and the Life Insurance Company shall be provided within twen ty (20) days

of A.E. ’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 par agraph 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 petitioners ha ve 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

4before the special master to award reasonable attorneys’ fees and costs incurred in proceeding

upon this petition.

13. Petitioners and their 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 be

expected to be made under any State compensati on 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 by entities that provide health services on a pre

- paid basis.

14. Payments made pursuant to parag raph 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 stipul ate that, except for any award

for attorneys’ fees and litigation costs, the money provided pursuant to this Stipulation will be

used solely for the benefit of A

. E. as contemplated by a strict construction of 42 U.S.C. §300aa

15(a) and (d), and subject t o the conditions of 42 U.S.C. § 300aa

- 15(g) and (h).

16. Petitioners represent that t he y presently are , or within 90 days of the date of

judgment will become, duly authorized to serve as guardian(s)/conservator(s) of A.E. ’s estate

under the laws of the S tate of New Jersey . No payments pursuant to this Stipulation shall be

made until petitioners provide the Secretary with documentation establishing their appointment

as guardian(s)/ conservator(s) of A .E. ’s estate. If petitioners are not authorized by a c ourt of

competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of A .E. a t the time a

payment pursuant to this Stipulation is to be made, any such payment shall be paid to the party or

parties appointed by a court of competent jurisdict ion to serve as guardian(s)/conservator(s) of

5the estate of A .E. upon submission of written documentation of such appointment to the

Secretary.

17. In return for the payments described in paragraphs 8 and 12, petitioners , in t he i r

individual capacit ies a nd as legal representative s of A.E. , on behalf of them sel ves
, A .E. , and h er

heirs, executors, administrators, successors or assigns, do 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 brough t 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 of A. E. resulting from, or alleged to have resulted from,

the flu vaccination administered on September 30, 2009, as alleged by petitioners in a petition

for vaccine compensation filed on or about September 18, 2012 , in the United States Court of

Federal Claims as petition No. 12

- 613 V

.

18. If A.E. 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.

19. If the special master fails to issue a decision in complete co nformity 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 b e voidable at the sole discretion of either party.

2 0 . 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

6as 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 des cribed 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.

2 1

. Petitioners hereby authorize respondent to disclose documents filed by petitioners in

this case consistent with the Privacy Act and the routine uses described in the National Vaccine

Injury Compensation Program Syste m of Records, No. 09

- 15

- 0056.

2 2 . 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 A.E. to suffer ADEM or

any other injury or condition.

2 3 . All righ ts and obligations of petitioners hereunder shall apply equally to petitioners ’

heirs, executors, administrators, successors, and/or assigns as legal representatives of A.E

.

END OF STIPULATION

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