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# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: February 17, 2017 No

. 15

- 114 8 V

* * * * * * * * * * * * * * * ALYCE SCHWENN, * * U NPUBLISHED * Petitioner, * Chief Special Master Dorsey * v. * Influenza (“ F lu”) Vaccine; Transverse * Myeliti s; Joint Stipulation. SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * *

J ustin Aaron Smith , Sloan Bagley Hatcher & Perry Law Firm, Longview, TX , for petitioner. V oris Edward Johnson , U.S. Department of Justice, Washington, DC, for respondent.

DECISION 1

On October 8, 2015, Alyce Schwenn ( “petitioner”) filed a petition u nder the National Vaccine Injury Compensation Program

. 2 Petitioner alleges that she developed transverse myelitis as a result of an influenza ( “ flu ” ) vaccine received on October 16, 2013. P etition at 1

.

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, 44 U. S.C. § 3501 note (2012)(Federal Management and Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secre t 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).

2 The National Va ccine 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.2

On February 17, 2017, the pa rties filed a stipulation recommending an award of compensation to petitioner

. Stipulation (ECF No. 39). R espondent denies that t he flu vaccine caused petitioner ’ s alleged transverse myelitis and residual effects, or any other injury. Nevertheless, the parties agree to the joint sti pulation, 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 c ompensation: 1) A lump sum of $ 315,00 0. 00 , in the form of a check payable to petitioner , Ms. Alyce Schwenn ; 2) 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.

These amount s represent compensation for all damages that would be available under 42 U.S.C. § 300aa

- 15(a). J oint Stipulation at ¶ 8. The undersigned approves the requested amount for petitioner ’ s compensation. Accordingly, an award should be made consistent with the stipulation.

In the absenc e of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation. 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 is 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

__________________________________________ ) ALYCE SCHWENN, ) ) Petitioner, ) ) No. 15-1148V (ECF)
v. ) Chief Special Master Dorsey ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) __________________________________________)
STIPULATION

T he parties hereby stipulate to the following matters:

1. Alyce Schwenn (“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 fo r injurie s allegedly sustained following petitioner ’s re ceipt of the influenza (“ flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a).

2. Petitioner received a flu vaccine on October 16, 2013. 1

3. T he vaccine was administered within the United States.

4. Petitioner alleges that she subsequently suffered transverse myelitis (“TM”) , which petitioner alleges was caused

- in

- fact by her receipt of the flu vaccine. Petitioner further alleges that she experienced the residual effects of her injury for more than six months.

1 The petition alleges in different places that the vaccination occurred on either October 14, 2013, or October 16, 2013. See Petition for Vaccine Compensation at preamble, ¶¶ 2-3. The vaccination record, however, documents the vaccination date as October 16, 2013.2 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of her condition. 6. Respondent denies that the flu vaccine caused petitioner’s alleged TM and

residual effects , or any other injury. 7. Maintaining their above-stated positions, the parties nevertheless now agree that

the issues between them shall be settled and that a dec ision 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 ele ction to 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 $315,000.00 in the form of a check payable to petitioner , Alyce Schwen n; and,
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- 15(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 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;3 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 Life I nsurance Company for petitioner’s benefit, pursuant to which the Life

Insurance Company will agree to make payments periodically to petitioner , as follows: Beginning as soon as practicable after the date of judgment, $4,053.30 per month for life only.
Petitioner will continue to receive the annuity payments from the Life Insurance Company only so long as she is alive at the time that a particular payment is due. Written notice to the Secretary of Health and Human Services and to the Life Insurance Comp any shall be provided within twenty (20) days of petitioner’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 an d 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 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 to4 42 U.S.C. § 300aa-21(a)(1), 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 h er attorney repre sent 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 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 by entities that provide health services on a pre- paid basis.

14. Payme nts 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 sufficient statutory funds.

15. The parties and their attorneys further agree and stipulate that, except for any award for attorneys’ fees and litigation costs, the money provided pursuant to this Stipulation

will be used sole ly for the benefit of petitioner , 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). 16. In return for the payments described in paragraphs 8 and 12, petitioner, in her individual capacity, and on behalf of her heirs, exec utors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the Secretary of Health and Human Services and the United States of America 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 could5 be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-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 allege d to have resulted from, the flu vacci ne administered on October 16, 2013, as alleged by petitioner in a petition for vaccine compensatio n filed on or about October 8, 2015, in the United States Court of F ederal Cla ims as petition No. 15-1148 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 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 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 Vaccine Injury Act of 1986, as amended , except a s otherwise noted in paragraph 12 above. There is absolutely no agreement on the part of th e 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 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. 20. This Stipulation shall not be construed as an admission by the United States of America or the Secretary of Health an d Human Services that petitioner ’s alleged TM and6 residual effects, or any other injury , were caused

- in

- fact by the flu vaccine.

21. All rights and obligations of petition er hereunder shall apply equally to petitioner’s heirs, successors and/or assigns.

END OF STIPULATION

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