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# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 574V Filed: November 23, 2021

* * * * * * * * * * * * * PAUL DERBER and CATHERINE * DERBER

, as parents on behalf of D.D., * a minor, * UNPUBLISHED

* Petitioner, * Decision on Joint Stipulation;

* Chronic Inflamm atory

v. * De myelinati ng Pol yneur opathy

* ( “ CIDP ” ); Influenz a ( “ f lu ” ) SECRETARY OF HEALTH * Vaccine. AND HUMAN SERVICES, *

* Respondent. *

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

Danielle A. Strait, Esq.

, Maglio Christopher & T oale

, Seattle

, WA

, for petitioner. Claudia B. Gangi

, Esq

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

DECISION ON JOINT STIPULATION 1

Roth

, Special Master:

On April 28, 2017

, Paul Derber and Catherine Derber [ “ Mr

. Derber and M rs. De rber ” or “petitioner s ”] filed a petition on behalf of their son, D.D., for compensation under the National Vaccine Injury Compensation Program

. 2 Petitioner s allege that D.D. developed chronic

1 Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the Court of Federal Claims’s website, in accordance with the E

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

- 347, 116 Stat. 2899, 2913 (codified as amended at 4 4 U.S.C. § 3501 note (2006)). This means the Decision will be available to anyone with access to the internet. However, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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 disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id

.

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

- 660, 100 Sta t. 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 ).

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inflammatory demyelinat ing polyneuropathy ( “ CIDP ” ) after receiving an influenza ( “ flu ” ) vaccine

on November 9, 2014

. Stipulation, filed November 23, 2021 , at ¶¶ 1

- 4. Respondent denie s that the flu vaccine caused D.D. to suffer from CIDP

, any other injury, or his present conditi on

. Stipulation at ¶ 6.

Nevertheless, the parties h ave agreed to settle the case. On Novem ber 23, 2021 , the parties filed a joint stipulation agreeing to settle this case and describing the settle ment terms.

Respondent agrees to issue the fol lowing payment :

a) A lump sum of $2 98,075. 90, which amount represents compensation for first

- year life
care expenses ($98,075.90) and pain and suffering ($200,00 0.00), in the form of a check payable to petitioner s as guardian(s)/conservator(s) of the estate of D.D. for the benefit of D.D

. No pa yment shall be made until petitioners provid e respondent with documentation establishing that they have been appointed as guardian(s)/conservator(s) of D.D. ’ s estate;

b) A lump sum of $ 84,809.70, which amount represe nts compensation for past unreimbursable expenses, in the f orm of a check p ayable to petitio ners, Paul De rber and Catherine Derber;

c) An amount sufficient to p urchase the ann ui ty contract described in paragraph 10 below, paid to the life insu rance company f rom which the ann uity will be p urchased (the “ Life Insurance C ompany ” ).

Th e s e amount s represents compensation for all damages that would b e av ailable under § 300aa

- 15(a).

I adopt the parties’ stipula tion attached hereto, and award compensation in the amount and on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance with this decision. 3

IT IS SO ORDERED.

s/ Mindy Michaels Roth Mindy Michaels Roth Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

) PAUL DERBER and CATHERINE ) DERBER, as parents on behalf of D.D., ) a minor, ) ) No. 17

- 574V Petitioner, ) Special Master Mindy M. Roth ) (ECF)

v. ) ) SECRETARY OF ) HEALTH AND HUMAN SERVICES, ) ) Respondent. ) )

STIPULATION

T he parties hereby stipulate to the following matters:

1. On behalf of their son, D.D., Paul Derber and Catherine Derber (“ petitioner s ”) 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 c ompensation for injuries

allegedly related to DD

. ’s receipt of the influenza (“flu ”) vaccine, which vaccine is contained in

the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).

2. D.D. received a flu immunization on November 9, 2014

.

3. The vaccine was administered within the United States.

4. Petitioner s allege that D.D. suffered from injuries, including chronic inflammatory

demyelinating polyneuropathy (“CIDP”)

, as a result of receiving the vaccine and suffered the

residual effects of his alleged injury for more than six months

.

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

for damages on behalf of D.D. as a result of his condition.2 6. R espondent denies that the flu v accine caused D.D. to suffer from CIDP, or any other

injury or h is 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 s hould 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 ha s filed an election 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 $ 298,075.90 , which amount represents compensation for first- year life care expenses ($ 98,075.90 ) and pain and suffering ($ 200,000.00 ), in the form of a check payable to petitioners as guardian(s)/conservator(s) of the estate of D.D. for the benefit of D.D. No payments shall be made until petitioners provide r espondent with documentation establishing that they have been appointed as guardian(s)/conservator(s) of D.D. ’s estate;

b . A lump sum of $ 84,809.70 , which amount represents compensation for past unreimbursable expenses , in the form of a check payable to petitioners, Paul Derber and Catherine Derber;

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”).

T hese a mounts represent compensation for all damages that would be available under 42 U.S.C. §300aa

- 15(a).

9. T he Life Insurance Company must have a minimum 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. M oody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;3 c. Standard a nd Poor’s Corporation Insurer Claims

- Paying Ability Rating: AA

- , AA, AA+, or AAA;

d. F itch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA

- , AA, AA+, or AAA.

10. T he Secretary of Health and Human Services agrees to purchase an annuity contract

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

Company will agree to make payments periodically to petitioners , as the court

- appointed

guardian(s)/conservator(s) of the estate of D.D. for the following items of compensation:

a. For future unreimbursable Insurance Premium ex penses, beginning on the anniversary of the date of judgment in year 2030 , an annual amount of $ 3,624.00 to be paid up to the anniversary of the date of judgment in year 2031, increasing at the rate of f our percent (4 %), compounded annually from the date of judgment.

b. F or future unreimbursable Prescription Medication Deductible, Pediatrician/P rimary Care Physician , Radiology Stud ies: Standing Foot & Leg, Dexa Scan, CBC, CMP, Blood Work, E mergency Room , Ambulance, Cell C ept, and Trusopt expe nses, beginning on the first anniversary of the date of judgment, an annual amount of $ 1,024.16 to be paid up to the anniversary of the date of judgment in year 2070. Thereafter, begin ning on the anniversary of the date of judgment in year 2070, an annual amount of $298.46 to be paid for the remainder of D.D.’s life, all amounts increasing at the rate of f our percent ( 4 %), compounded annually from the date of judgment.

c . F or future un reimbursable Medicare Part B Deductible expenses, beginning on the anniversary of the date of judgment in year 2070 , an annual amount of $ 203.00 to be paid for the remainder of D.D.’s life, increasing at the rate of f our percent ( 4 %), compounded annually from the date of judgment.

d . F or future unreimbursable Medigap Part G expenses, beginning on the anniversary of the date of judgment in year 2070 , an annual amount of $ 2,928.96 to be paid for the remainder of D.D.’s life, increasing at the rate of f ou r percent ( 4 %), compounded annually from the date of judgment.

e . F or future unreimbursable Pediatrician/Primary Care M ileage, Neurologist (Dr. Proud and Dr. Crawford) Mileage, P hysical Medicine and Rehabilitation Mileage, Orthopedi st Mileage, Podiatr ist Mileage, Optometr ist Mileage, Op h thalmologist Mileage, Endocrinolog ist Mileage, EMG Mileage, Radiolog ist Mileage, CBC Mileage, CMP Mileage, Counseling Mileage, Physical Therapy Evaluation Mileage, O ccupational Therapy Evaluation Mileage, P hysical Therapy Mileage, O ccupational Therapy Mileage, Equine Therapy Mileage, and Aqua Therapy Mileage e xpenses, on the first anniversary of the date of judgment, a lump sum of $ 1,560.78. Then, beginning on the second4 anniversary of the date of judgment, an annual amount of $566.18 to be paid up to the anniversary of the date of judgment in year 2025. Then, on the anniversary of the date of judgment in year 2025 , a lump sum of $ 391.07. Then, beginning on anniversary of the date of judgment in year 2026, an annual amount of $ 363.68 to be paid up to the anniversary of the date of judgment in year 2028. Then, beginning on anniversary of the date of judgment in year 2028, an annual amount of $ 332.77 to be paid up to the anniversary of the date of judgment in year 2032. Then, beginning on anniversary of the date of judgment in year 2032, an annual amount of $ 84.94 to be paid up to the anniversary of the date of judgment in year 2046. Thereafter, beginning on the anniversary of the date of judgment in year 2046, an annual amount of $79.93 to be paid for the remainder of D.D.’s life, all amounts increasing at the rate of three percent ( 3 %), compounded annually from the date of judgment.

f

. For future unreimbursable Neurologist , P hysical Medicine and Rehabilitation

, Op h thalmology, Endocrinology, Radiology Studies : Spine, and Counseling e xpenses, beginning on the first anniversary of the date of judgment, an annual amount of $ 1,196.18 to be paid up to the anniversary of the date of judgment in year 2026. Then, beginning on anniversary of the date of judgment in year 2026, an annual amount of $ 1,028.03 to be paid up to the anniversary of the date of judgment in year 2028. Then, beginning on anniversary of the date of judgment in year 2028, an annual amount of $ 788.03 to be paid up to the anniversary of the date of judgment in year 2032, all
amounts increasing at the rate of four percent (4 %), compounded annually from the date of judgment.

g . F or future unreimbursable Orthopedi st and EMG e xp enses, on the first anniversary of the date of judgment, a lump sum of $ 757.88 . Then, beginning on second anniversary of the date of judgment, an annual amount of $ 340.00 to be paid up to the anniversary of the date of judgment in year 2046, all amounts i ncreasing at the rate of four percent ( 4 %), compounded annually from the date of judgment.

h . F or future unreimbursable Podiatry, Optometry, and Vitamin D e xpenses, beginning on the first anniversary of the date of judgment, an annual amount of $ 170.55 to be paid up to the anniversary of the date of judgment in year 2032. Thereafter, beginning on the anniversary of the date of judgment in year 2032, an annual amount of $ 130.55 to be paid for the remainder of D.D.’s life, all amounts increasing at the rate of three percent ( 3 %), compounded annually from the date of judgment.

i . F or future unreimbursable Care M anagement e xpenses, beginning on the first anniversary of the date of judgment, an annual amount of $3,708.00 to be paid up to the second anniversary of the date of judgment. Then, beginning on second anniversary of the date of judgment, an annual amount of $ 7,416.00 to be paid up to the anniversary of the date of judgment in year 2028. Then, beginning on anniversary of the date of judgment in year 2028, an annual amount of $ 5,562.00 to be paid up to the anniversary of the date of judgment in year 2036. Thereafter, beginning on the anniversary of the date of judgment in year 2036, an annual amount of $ 3,708.00 to be paid for the remainder of5 D.D.’s life, all amounts increasing at the rate of three percent ( 3 %), compounded annually from the date of judgment.

j . F or future unreimbursable Orthotic s , Ankle Foot Orthodics (AFOs)

, supramalleolar orthosis (SMOs) , Manual W heelchair , W heelchair Mai nt enance , Power Scooter, Battery, Scooter Car Carrier, Cane, Walker, Perching Stool, Shower Chair, and Bedside Commode e xpenses, on the first anniversary of the date of judgment, a lump sum of $ 2,682.87 . Then, on the second anniversary of the date of judg ment, a lump sum of $ 5,165.62 . Then, beginning on the anniversary of the date of judgment in year 2024, an annual amount of $ 2,231.74 to be paid up to the anniversary of the date of judgment in year 2030. Then, on the anniversary of the date of judgment in year 2030, a lump sum of $ 2,413.36 . Then, beginning on the anniversary of the date of judgment in year 2031, an annual amount of $ 2,268.06 to be paid up to the anniversary of the date of judgment in year 2060. Then, on the anniversary of the date of j udgment in year 2060, a lump sum of $ 2,334.91

. Then, beginning on the anniversary of the date of judgment in year 20 6 1, an annual amount of $2,268.06 to be paid up to the anniversary of the date of judgment in year 206 5. Then, on the anniversary of the date of judgment in year 206 5 , a lump sum of $2,334.91. Then, on the anniversary of the date of judgment in year 206 6 , a lump sum of $2,265.39. Then, beginning on the anniversary of the date of judgment in year 20 67 , an annual amount of $2,248.39 to be paid up to the anniversary of the date of judgment in year 20 70

. Then, on the anniversary of the date of judgment in year 20 70 , a lump sum of $ 860.00

. Then, on the anniversary of the date of judgment in year 20 71 , a lump sum of $ 1,312.20 . Thereafter, beginning on the anniversary of the date of judgment in year 2072, an annual amount of $ 972.20 to be paid for the remainder of D.D.’s life, all
amounts increasing at the rate of three percent ( 3 %), compounded annually from the date of judgment.

k . F or future unreimbursable Therapy e xpenses, beginning on the first anniversary of the date of judgment, an annual amount of $ 4,644.15 to be paid up to the anniversary of the date of judgment in year 2024. Then, on the anniversary of the date of judgment in year 2024, a lump sum of $ 3,744.15 . Then, on the anniversary of the date of judgment in year 2025, a lump sum of $ 2,512.95

. Then, beginning on the anniversary of the date of judgment in year 20 26 , an annual amount of $ 530.00 to be paid up to the anniversary of the date of judgment in year 20 70, all amounts increasing at the rate of three percent (3 %), compounded annually from the date of judgment.

l . F or future unreimbursable Home O ccupational Therapy e xpenses, on the anniversary of the date of judgment in year 2030, a lump sum of $ 446.50 . Then, on the anniversary of the date of judgment in year 2040, a lump sum of $ 446.50

. Then, on the anniversary of the date of judgment in year 20 55 , a lump sum of $ 446.50 , all amounts increasing at the rate of three percent ( 3 %), compounded annually from the date of judgment.

m . F or future unreimbursable A ttendant Care

, and Ancillary Service e xpenses, beginning on the first anniversary of the date of judgment, an annual amount of $ 12,792.00 to be paid up to the second anniversary of the date of judgment. Then, beginning on second annivers ary of the date of judgment, an annual amount of $ 18,720.00 to be paid up to the6 anniversary of the date of judgment in year 2028. Then, beginning on anniversary of the date of judgment in year 2028, an annual amount of $ 25,224.00 to be paid up to the

anniversary of the date of judgment in year 2055. Then, beginning on anniversary of the date of judgment in year 2055, an annual amount of $ 29,904.00 to be paid up to the anniversary of the date of judgment in year 2070. Thereafter, beginning on the anniver sary of the date of judgment in year 2070, an annual amount of $ 51,099.00 to be paid for the remainder of D.D.’s life, all amounts increasing at the rate of three percent (3 %), compounded annually from the date of judgment.

n . F or future unreimbursable Home Modification e xpenses, on the anniversary of the date of judgment in year 2030, a lump sum of $ 10,000.00 . Then, on the anniversary of the date of judgment in year 2040, a lump sum of $ 10,000.00

. Then, on the anniversary of the date of judgment in ye ar 20 55 , a lump sum of $ 10,000.00 , all amounts increasing at the rate of three percent ( 3 %), compounded annually from the date of judgment.

o . F or future unreimbursable Car Adaptation e xpenses, beginning on the first anniversary of the date of judgment, an annual amount of $ 250.00 to be paid up to the anniversary of the date of judgment in year 2052. Then, on the anniversary of the date of judgment in year 2055, a lump sum of $ 13,500.00 . Thereafter, beginning on the anniversary of the date of judgment in year 2056, an annual amount of $ 1,350.00 to be paid for the remainder of D.D.’s life, all amounts increasing at the rate of three percent ( 3 %), compounded annually from the date of judgment.

A t the sole discretion o f 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 petition ers and do

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

receive the annuity payments from the Life Insurance Company only so long as D.D. is alive at

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

Services, and the Life Insurance Company shall be provided within twenty (20) days of D.D.’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 agre e that the Secretary

of Health and Human Services and the United States of America are not responsible for the7

p ay ment of a n y sums ot h er than the amounts s et forth in paragraph 8 h erein and the amounts

awarded pursuant to paragra p h 12 herein, and th at t h ey do not

gua rantee or insure

a n y o f the

future annuit

y p ay ments. U p o n the

pur chase o f the

a n n u it y co n tract, the S ecretary of

H ealt h and

Hu m an Serv i ces an d the Un

i ted States of

A m er i ca ar e re l eased f rom any an d a l

l ob li gat i ons w i th

respect t o future annuity paymen ts.

1 2

. As soon as practicable after the entr y of j udgment on entitlement in th is case, and

afte r petitioner ha s filed both a proper a nd timel y election t o receive compensati o n p ursuant

t o

4 2 U.S.C. § 300a a -2 1(a)(1), and an application, the pa rtie s w ill submit t o further pr o ceedings

befor e th e spec i

al m aster t o award r ea so n able

a ttorneys’ f

ees a n d co sts incurred i

n proceeding

u pon this pe tition.

1 3. P etitioners and their a ttorney represent that c ompensati o n t o be provide d p u

rsuant to

this Stipulati on is not for

a n y items or s ervices f

o r w hic h th e P rogram

i s n o t primaril

y liable

u nder 42 U.S.C. § 300a a -1 5(g), to the e x tent that pa y men t has be en ma d e or can reasonabl y be

expected to be

m ade u n d er an y State c o mpensati

on programs, insurance policies, Federal o r

State health benefits pr o g rams (other than Title XIX o f t h e Social Securit

y Act (42 U.S.C. §

1 396 et seq.)), or by entities t h at p ro v ide

he alth services on a

pr e -p aid basis.

14. P ayments made

pur suant t o paragraph 8 and a n

y amo u n ts awarde d pursuant to

p arag raph 12 of

t h is S tip u lati o n will be made in accordance with 42 U.S.C. § 300aa -1 5 (i),

su b ject t o the availabilit

y of sufficient statutory funds.

15. Th e parties a n d their attorneys further a g ree and stipulate that, e x cept for any award

for a tto rneys’ fees and litigati o n co sts, and past unr eimburse d expenses, the m o n e y provided

p u rsuant t o this Stipulati on will be us ed solel

y fo r t he b e n ef it o f D.D. as co nte m

p l ated by a str i

ct8 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. Petitioners represent that they presently are , or within 90 days of the date of

judgment will be come, duly authorized to serve as guardian(s)/conservator(s) of D.D. ’s estate

under the laws of the Commonwealth of Virginia . No payments pursuant to this Stipulation shall

be made until petitioners provide the Secretary with documentation establishing th eir

appointment as guardian(s)/conservator(s) of D.D. ’s estate. If petitioners are not authorized by a

court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of D.D. 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 jurisdiction to serve as

guardian(s)/conservator(s) of the estate of D.D. upon submission of written documentation of

such appointment to the Secretary.

17. I n return for the payments described in paragraphs 8 and 12, petitioners, in their

individual capacities and as legal representatives of D.D., on behalf of themselves, D.D., and his

heirs, executors, administrators, successors or assigns, do forever irrevoc ably 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 deman ds 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 D.D. resulting from, or alleged to have resulted from

the flu vaccination administered on November 9, 2014, as alleged by petitioners in a petition for9 v accine compensation filed on or about April 28, 2017, in the United States Court of Federal

Claims as petition No. 17

- 574 V.

18. If D.D. 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 conformity with the terms

of this Stipula tion 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 ei ther party.

20 . 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 absolute ly 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 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.

21

. Petitioner s hereby authorize respondent to disclose documents filed by petitioner s 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.

22 . Thi s 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 D.D. to suffer from CIDP or

any other injury or condition.10 23. All rights and obligations of petitioners hereunder shall apply equally to petitioners’

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

END OF STIPULATION

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