# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 13

- 492 V

Filed: December 3 , 2014

* * * * * * * * * * * * * * * * UNPUBLISHED WENDY LISTER, *

* Special Master Hamilton

- Fieldman Petitioner, *

* Joint Stipulation on Damages;

v. * Influenza ( “ Flu ” ) Vaccine; Guillain

- * Barr é Syndrome (“GBS”)

. SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

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

Lawrence Cohan

, Anapol Schwartz, Philadelphia, PA

, for P etitioner

. Ann D. Martin

, United States Department of Justice, Washington , D

. C

. , for R espondent.

DECISION 1

On July 19 , 2013

, Wendy Lister (“ P etitioner ”) filed a petition pursuant to the National Vaccine Injury Compensation Program

. 2 42 U .S.C. §§ 300aa

- 1 to

- 34 (2006). Petitioner alleged
that s he suffered from Guillain

- Barré syndrome (“GBS”) as a result of an influenza (“flu”)
vaccine administ er ed to h er on October 12 , 2011

.

On December 3

, 2014

, the parties filed a stipulation in which they state that a decision should be entered awarding compensation. Respondent denies that the flu vaccine caused
Petitioner’s GBS or any other injury . Nevertheless, the parties agree to the joint stipulation,

1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims , 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)). As provided by Vaccine Rule 18(b), each party ha s 14 days within which to request 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
disclos ure of which would constitute a clearly unwarranted invasion o f privacy.” Vaccine Rule 18(b).

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 (2006) (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.

1attached 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 P etitioner shall receive the following compensation:

A lump sum of $ 514,651.20
, which am ount represents compensation for first year life care expenses ($129,314.94) , lost earnings ($204,214.24), and pain and suffering ($181,122.02), in the form of a check payable to Petitioner, Wendy Lister; and

An amount sufficient to purchase an annuity contract desc ribed in paragraph 10 of the attached stipulation, paid to the life ins urance company from which the annuity

will be purchased

.

Stipulation ¶ 8.

The undersigned approves the requested amo unt for P etitioner ’s compensation. Accordingly, an award should be made consistent with the stipulation.

In the absence of a motion for review filed pursuant to RCFC App endix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation. 3

IT IS SO ORDERED.

s/ Lisa Hamilton

- Fieldman
Lisa Hamilton

- Fieldman 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.

2IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS

____________________________________ )

WENDY LISTER

, ) ) Petitioner, )

v. ) ) No. 1 3

- 492 V
S ECRETARY OF HEALTH ) Special Master Hamilton

- Fieldman

AND HUMAN SERVICES ) ECF ) Respondent. ) ____________________________________)

STIPULATION

The parties hereby stipulate to the following matters:

1. Wendy Lister , 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 an

influenza vacci ne, which vaccine is contained in the Vaccine Injury Table (the “Table”),

42 C.F.R. § 100.3 (a).

2. Petitioner received h er in f lu enza immunization on October 1 2 , 20 11

.

3. The vaccination was administered within the United States.

4. Petitioner allege s that s he su ffered Guillain

- Barré 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 h er behalf as a result of h er condition.

6. Respondent denies that the in flu enza vaccine caused petitioner to suffer from GBS or

any other injury

.

7. Maintaining their above

- stated positions, the parties nevertheless now agree that the Case 1:13-vv-00492-UNJ Document 24 Filed 12/03/14 Page 1 of 7issues between them shall be settled and that a decision sho uld 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 t o 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 $ 514,651.20 , which amount represents compensation f or first year life

care e xpenses ($ 129,314.94 )

, lost earnings ($ 204,214.24 ), and pain and suffering ($ 1 81,122.02 )

, 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 insura nce company from which 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 Compan y

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 Corpora tion 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 co ntract

from the Life Insurance Company for the benefit of petitioner, Wendy Lister , pursuant to which

the Life Insurance Company will agree to make payments periodically to petitioner as follows:

a

. For future unreimbursable Medigap Premium, Medicare Part B Premium, and

m edication expenses , beginning o n the first anniversary of the date of judgment, an annual amount of $ 3,224.68 to be paid up to the anniversary of the date of judgment in

year 20 19. Thereafter, beginning on the anniversary of the date of j udgment in year

2 Case 1:13-vv-00492-UNJ Document 24 Filed 12/03/14 Page 2 of 72019, an annual amount of $1,965.88 to be paid for the remainder of petitioner’s life

, all

amounts i ncreasing at the rate of f ive percent ( 5 %), compounded annually from the date of judgment.

b

. For future unreimbursable mobility and adapt ive equipment expenses , beginning on the first anniversary of the date of judgment , an annual amount of $500.20 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 attendant care expenses, beginning o n the first anniversary of the date of judgment, an annual amount of $17,850.00 to be paid up to the anniversary of the date of judgment in year 2019. Thereafter, beginning on the annivers ary of the date of judgment in year 2019, an annual amount of $35,700.00 to be paid for the remainder of petitioner’s life, all amounts i ncreasing at the rate of three percent ( 3 %), compounded annually from the date of judgment.

d

. For future unreimbursa ble m odified v an expenses, beginning on the first anniversary of the date of judgment , an annual amount of $ 4, 400 .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 judgm ent.

A t 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 descr ibe only the total yearly sum to be paid

to petitioner and do not require that the payment be made in one annual installment. P etitioner

will continue to receive the annuity payments from the Life Insurance Company only so long as

s he, Wendy Lister , is al ive 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 Wendy Lister ’s death.

11. The annuity contract will be owned solel y 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 Serv ices 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

3 Case 1:13-vv-00492-UNJ Document 24 Filed 12/03/14 Page 3 of 7awarded 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 t he special master to award reasonable attorneys’ fees and costs incurred in proceeding

upon this petition.

13. Petitioner and h er 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 th at 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 suffici ent 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 immediate ly 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).

4 Case 1:13-vv-00492-UNJ Document 24 Filed 12/03/14 Page 4 of 716. In return for the pay ments described in paragraphs 8 and 12, petitioner, in h er

individual capacity, and on behalf of h er heirs, executors, administrators, successors or assigns,

does forever irrevocably and unconditionally release, acquit and discharge the United States and

t he 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. § 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 influenza vaccination administered on October 12,

2011 , as alleged by petitioner in a petition for vaccine compensation filed on or about July 19

,

2013

, in the United States Court of Federal Claims as petition No. 1 3

- 492 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 fai ls 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’

se ttlement 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 ag ree and understand that the award described in this

5 Case 1:13-vv-00492-UNJ Document 24 Filed 12/03/14 Page 5 of 7Stipulation 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 c ompensation 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 Vacc ine

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 influenza vaccine caused petitioner’s Guillain

GB S or any other injury.

2 2

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

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

END OF STIPULATION

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