# In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS 

## * * * * * * * * * * * * * * * * * * * * * KELLY TAVANO , * * No. 15

- 1206 V Petitioner, * Special Master Christian J. Moran * v. * Filed: May 22 , 2017 * SECRETARY OF HEALTH* Stipulation; influenza (“flu”) vaccine ; AND HUMAN SERVICES, * transverse myelitis (“ TM ”). * Respondent. * * * * * * * * * * * * * * * * * * * * * * Ronald C

. Homer , Conway, Homer, P.C. , Boston, MA , for Petitioner; Amy P
. Kokot , United S tates Dep ’ t of Justice, Washington, DC, for Respondent. UNPUBLISHED DECISION 1 

## On May 22 , 2017 , the parties filed a joint stipulation concerning the petition for compensation filed by Kelly Tavano on October 15 , 2015
. In her petition, Ms. Tavano alleged that the influenza vaccine, which is contained in the Vaccine Injury Table , 42 C .F.R. §100.3(a), and which she received on Novem ber 2 0 , 201 3 , caused her to develop transverse myelitis (“ TM ”)

. Petitioner f

urther alleges that she experienced the resi dual effects of this injury for more than six months. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of her condition. Respondent denies that the flu vaccine administered on or about November 20, 2013, is the cause of petitioner’s alleged TM and/or any other injury or her current cond ition.

1 

### The E -Government Act, 44 U.S.C. § 3501 note (2012 ) ( Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website.

### 2 

## Nevertheless, the parties agree to the joint stipulation, attached hereto. The undersigned finds said stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein. Damages awarded in that stipulation include:
a. A lump sum payment of $224,073.82, which amount represents compensation for first -year life - care expenses ($52,073.82), lost earnings ($2,500.00), pain and suffering ($155,000.00), and past unreimbursable expenses ($14,500.00) in the form of a check payable to petitioner; and b. An amount sufficient to purchase the annuity described in paragraph 10 of the stipulation . This represents compensation for all damages that would be available under 42 U.S.C. § 300aa

- 15(a). In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter ju dgment in cas e 15

- 1206 V according to this decision and the attached stipulation. 2 

## IT IS SO ORDERED
. s/Christian J. Moran Christian J. Moran Special Master

2 

### Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Fed eral Claims judge.IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
KELLY TAVANO, ) ) ) ) ) ) ) Petition er,


### v. No. 1 5·1206V (ECF) Special Master Moran

. SECRETARY OF HEALTH AND HUMAN SERVICES, · ) ) ) ) Resl?ondent.
STIPULATION The pa rtie s hereby s tipul a te to th e following matters:

· I. Ke lly Tavano, petitioner, filed a petition for vaccine compensation under th e N a ti onal Vaccine Inju ry Compensati on Program, 42 U.S.C
. §§ 300aa- 10 to -34 (the "Vaccine Program"). The petition seeks compensation for inj u ries allegedly related to peti tioner's rece ipt of the influenza (" flu") vacc in e, whi ch vaccine i s contained in the Vacc in e Injury Table (t he "Tabl e "), 42 C.F.R
. § 100.3(a). 2. Petitioner received a flu v acci nati on on or ab o ut November 2 0 , 2013. 3. The vacc ine was administered within th e Uni ted States. 4
. Petitioner alleges th at the flu vaccine caused her to develop transverse myeliti s ("TM"). Petitioner
. further allege s tha t s h e experienced th e r es idual e ff ec ts of this inj u r y fo r
more than s i x m on

ths. 5. Petitioner represents that there has been no prior award or settl ement of a civll ac tion fo r damages as a result of h er condition
. 6. Respondent denies that the flu vaccine admini s tered on o r about November 20, 2013, i s t he ca use of petiti on e r' s all eged TM and/or any other inj ury or her cu rr ent cond iti on.7. Maintaining their above-stated pos iti ons, the parties nevertbeless now agree that the issues between them shall be se ttled and that a decision s h ou ld be enter ed awarding the**comp~nsat n**  described in paragraph 8 of this**St ipula** **tio~.** 8. As soon as prac tic ab le after an entry of jud g m ent reflect in g a dec isi on co nsistent with the terms of this**~tipulation ,**  and a ft er peti tione r has filed an e l ec t ion to receive c ompensa t ion pursua nt to 42 U.S.C. § 300aa-2 I (a)( I) , the Secretary of He a lth and Hum an Services will I ssue t h

e fo llowing vaccine compensation payments:
a . A lump s um of $224,073.82, which amount represents compensation for first-year life-care expenses ($52,073.82), lo st earnings ($2,500.00), pain and s uff ering ($155,000.00), a nd pas t un re imbur sab le expenses ($14 , 500.00) in the form ofa chec k payab l e to petition er; and

· b. An amount su fficient to purchase the annuit y co ntr act des cribed in parag ra ph 10 below, pa id to the life insuranc e company fr om which the an nuity w ill be pu rc ha sed (the "Life In s urance Company"). 9
. The Life In s uran ce Company mu st h a ve a minimum of $250,000,000 capital and
s urp l us, exclusive of an y mandatory sec urity valuation reserve . The Life Insura n ce Company must hav

_ e one of the fo ll ow ing ratings from two of th e fo llowing rating organizations:
a . A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s; b. Moody's ln ves tor Service Clai m s Payin g Rating: Aa3, Aa2, Aal, or Aaa;
c. Standard and Poor's Corporation In su re r Cla im s-Paying Ability Rating: AA-, AA, AA+, or AAA; d. Fitch Credit Rating Company, ln su ran ce Company C laim s Paying Ability Rating: AA-, AA, AA+, or AAA. I 0. The Secretary of Health and Human Services agrees to purchase an annuity con tr act from th_e**Lif~** Insurance Company for the be nefit of petitioner, Ke ll y Tavano, pursuant to which the Life Insurance Company will agree to make payments periodically to petitioner as follows:

2a. For future unreimbursable Blue Cross Blue Shield Deductible, Medicare Part B Deductible, Primary Care Physician, Neurologist, Urologist, Gastroenterologist, Orthopedist, Hartford Hospital Pain and Treatment Center, Ophthalmologist, Podiatrist, Psychiatrist, Gynecologist, Physiatrist, XMray, Cymbalta, Bupropion, and Vesicare expenses, beginning on the first ann iversary of the date of judgment, a'

n annual amount of $4,423.99 to be 'pa id ' up to ' the s ' econd anniversary of the date of

judgment. Then, beginning on the second anniversary of the date of judgment, an annual amount of $4,363.99 to be pa id up to the anniversary ofthc date of judgment in year 2032. Tttereafte r, beginning on the anniversary of the date of judgment in year 2032, an annua l amount of $696.99 to be paid for the remainder of petitioner's life, all amounts in creasing at the rate of five percent (5%), compou nded annually from the date of judgment. b. For fut ure unreimbursable Med i care Part D expenses, beginning on the ann iversary of the date of judgment in year 2032, an annual amount of $2,3 86.79 to 

# be paid for the remainder of petitioner's li fe, increasing at the rate of five percent (5%), compounded annually from the date of judgment.
c. For future unreimbursable MRI expenses, beginning on the first anniversa r y of the date of judgment, an annual amount of $338.28 to be paid up to the anniversary of the date of judgment in year 2025, increasing at the rate of five percent (5%), compoun de d annually from th e date of judgment. d. For future unreimbursnble Aids and Therapeutic Equ i pment for Activities of Daily Living and Hygiene Item expenses, beginning on the first ann i versary of the date of judgment, an annual amount of $ 1 ,523.09 to be paid up to the anniversary of the date of judgment in yea r 2022. Then, on the anniversary of the date of judgment in year 2022, a lum p sum of$1,527.24. Thereafter, beginning on the ann i versary of the date of judgment in year 2023, an annual amount of$l ,523.68 to be paid up to the anniversary of the date of judgment in year 2033. The r eafter, beg innin g on the anniversary of the date of judgment in year 2033, an annual amount of$ 1 ,298.68 to be ' paid for the remainder of petitioner's life,
. all amounts increasing at the rate of four percent (4%), compounded annually from the date o f judgment.
e. For future unreimbursable Gym Membership expenses, beginning on the first anniversary of the date of judgment, an annua l amount of $708 .00 to be paid up to the c,nn i versary of the date of judgment in year 2040, increasing at the rate of four percent (4%), compounded annually from the date of judgment. f. For future unreimbursable Home Health Aide and Home Assistance expenses , beg in ning on the first ann iversary of the date of judgment, an annual amount of $2,600.00 to be paid up to the ann i versary of the date of judgment in year 2032. Then, beg innin g on the anniversary of the date of judgment in year 2032, an annual amount of $11, 1 28 .00 to be paid up to the annive rs ary of the date of judgment in year 2038. Thereafter, beginning on the anniversary of the date of
3judgment in year 2038, an annual amo unt of $15,080.00 to be paid for the rema ind er of petitioner's 

### life, all am ounts in cr eas in g at the rate of four percent (4%), co mpounded annually from th e date of judgment. g. For future unreimburs able Jo hn s Hopkins University Per Diem expenses,

·beginning on th e first anniversary of the date of ju dgmeri t, an annual amount of $2,234.28 to be paid up to t he an niv e rsary of the date of judgment in year 2021. Th en , beg i nning on the a nniv e r sary of the date of judgment in yea r 202 1, an an nual amount of $ 1, 489
. 52 to be p aid up to the anni versary of the date of judgm e nt i n year 2024
. Then, beginning on the a nniv ersary of the da te of judgm en t in year 2024, a n annu al amount of $744.76 to be pa id u p to the an ni versary of judgment in year 202 7, all amo un ts increasing at the rate of four**perc~nt** (4%), co mpounded annually from the date of jud gmen t. h. For future unreimbursable Advil, Physical Therapy, Co un se lor, Prim a ry Ca r e Physician Mile age, Urolog is t Mileage, Gastroenterologist Milea ge, Orthopedist M il eage, Pain Center Mileage, Psychiatrist Mileage, Podia tri st Mileage, Physiatrist Mileage, MRI Mileage, Physical The r apy Mileage, Co un selor Milea ge, and Car Tra nsfer Ai d expenses, beginning on the first annivers a ry of the date of judgment, a Jump s um of $3 00
. 18. Then, beg inn ing on the
.seco nd ann iversary of the date of judgment, an annual a m ount of $129.55 to be paid up to t he anniversary ofthe dat e of j udgm e n t in year 2022
. Then, on the anni versary of t he date of judgment in year2022, a lum p s um of$159.50

. The· n, be g innin g o n the anniv ersary of th e date of j udgm ent i n year.2023, an ann ual am ou n t of $133.83 to be p ai d up to the anniv ersa ry of the date o f judgment in year 2025. Then, begi nnin g on the anniversa r y of th e date of judgment in year 2025, an a nnual amount of$ 1 3 l .52 to be paid up t o th e anniv e rsar y of the date of ju dg ment in yea r 2032. Thereafter, beg in ning on th e anniv ersary of the date of judgment in yea r 2032, an annual amount of$252.53 to be paid for th e remainder of pet iti one r 's life , nll amou n ts increasing a t the rate of fou r percent (4%) , compounde d annually from the date of judgment. i. for future un reimbursable Driver's Eval uation expenses, on the a nniv e r sary of the date of jud gme n t in yea r 2026, a lump su m of $3 00.00 , i ncreasi ng at th e rate of four percent (4%), compo u nde d annu all y from the date of judgment.

· At the so l e di scre t io n of the Secreta r y of Health a nd Human Services, the periodic payments set for th in p a ra graph 10 above may be provided to petitioner in monthly, qu ar terl y, annual or o ther insta llments. The "annu a l amounts" set forth above de sc ribe on ly the total yearly
sum to be paid t o petition e r and do not require that th e payment be made in o ne annual installment. Peti tion er will continu e to receive the a nn uity payments from the Life In s uran ce

4Compa n y o nly so long as she , Kelly Tavan o, is ali ve at t h e tim e that a particular payment is due . Wri tten notice s ha ll be provided to the Secretary of H ea lth and Human Services a nd the Life Insurance**~o mp** **any** within twenty (20)**~ys o~Kelly**  Tavano's death. 11. T h e annuity contract w ill be ow ned so l ely and exclusively by the Secretary of Health and Human Serv i ces an d will be purchased as soon as practicable fo ll owing the entry ofa judgment in confo r . mity with this Stipulation
. The pa rtie s stipu late and agree that the Secretary of Health a n d Human Services and the United States of A m

erica a r e not re spo n s ible for th e payment of any s um s oth er t han the a mount s set forth in paragraph 8 herein a nd the amou nt s awarded pursuant to paragraph 12**hereit~,** and that they do not gua rantee or ins ure a n y of the future annuity payments. Upon the purchase of the annui ty contract, the Secretary of Health an d Human Services and the Un ited S tates of America ar e released from any and all obligations with
re s pect to future annuity payments. 12. As soon as practi cable afte r the e nt ry of judgm ent on entitl e m en t in th is case, and after petitioner has fil ed both a proper and timely electio n to receive compe n sation pursuant to 42 U.S.C
. § 30 0aa -2 l(a)( l), a nd an appl i cati on, th e pa rti es wi ll s ubmi t to further proceedings l;lefore the specia l master to award r easonab l e attorneys' fees and costs in curred in proceeding upon t hi s petiti on . .

13
. Petitioner and her att orney r epresen t th at th ey have identified to respondent a ll known sources of payment for items or services for wh ich th e Program is not pri m a

rily liabl e under 42 U.S
. C. 

### § 300aa- 1 5(g), includin g State com pensation programs, in s ura n ce pol icies, Federa l or State health benefits programs (other th an Tit le XIX of the Social Security Act (42 U.S · .C
. § 1 396 e t seq.)), or enti ti es that prov id e h ea lth serv ices o n a pre-paid basis.



### 514
. Payment made pursuant to paragraph 8 of th is Stipulation, and any amount awarded pursuant to paragraph 12 of this Stipulation, will be made in accordance with 42 U.S.C. § 300aa15(i ),
. subject**t~** the**~vailability** of sufficient statutory funds. 15
. The parties and their attorneys further agree and sti pulate that , except for any award for a tt orneys' fees and litigation costs, and past unreimbur sab le expenses, the money provi ded pursuant to this Stipu lation will be used so l ely for the benefit of petitioner as contemplated by a str ic t construction of 42 U.S.C. § 300aa-1 S(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 paragr ap hs 8 and 12, petitioner, in her individual capacity, and o n behalf of her heir s, executors, administrators, s uccessors and/or

. assigns, does forever irrevo cab ly and unconditionally release, acquit and discharge the United

St

. ates and the Secretary of Hea l th and**Ht~man** Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demand s ofwhatever 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 Vac cine 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, s uspected or unsuspected persona l injuries to or death of petitioner resulting from, or alleged to have resulted from, the flu vaccination admi nistered on or about November 20, 2013, as alleged by petitioner 

## In a petition for vaccine compensation filed
on or about October 15, 2015, in the United States Court of Federal Claims as petition No. I 5- l206V
. 17. Ifpetitioner should die prior to entry of judgment, this agreement shall be voidable upon proper no t ice to the Cou1t on behalf of either or both ofthe parties.

6

## .. 18. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court ofFederal Claims fails to enter judgment in conformity with a deci sion that is in complete conformity with the terms of this Stipulation, then th e parties'

. . . . . . . . . . . . . . . settlement and this Stipulation shall be voidnble at the sole discretion of either party. 19
. This Stipulation expresses a full and complete negotiated settle ment ofliability and damages claimed under the National Childhood Vaccine Injury Act of 1986, 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 partie s further agree and understand that the award described in this St ip u la tion

· 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 soug ht, 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 Vaccine 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 flu vaccine caused petitioner's alleged TM, or any other injury or her current condition: 22. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or as s igns
.
I I

. I I EN D OF STIPULATION

7Respectfully submitted, PETITIONER:

ATTORNEY OF RECORD FOR PETITIONER: 

# fOll#de. 

# !b.uJJ.Jf**wJi/td)J<t~** RONALD 

## c:HO**~** 

## f4/ln ,/cc)t;.) Conway, Homer, P.C. 16 Shawmut Street 

### Boston, MA 021 I 6 Tel: (617) 695-1990



### ' .D
. Director, Division of [njury 

### CompenS3tio n Programs Healthcare Systems 

### Bureau U.S. Department of 

### Health and Human Services 5600 Fishers Lane 

### Parklawn Building, 

### Mail Stop 

### 08NI46B Rockville, MD
. 20857

8 AUTHORIZED REPRESENTATIVE OF TI· IE AITORNEY GENJiRAI , :

Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146
ATfORNEYOFRECORDFOR RESPONDENT:

Trial Attorney Torts Branch Civil Division U.S. Department of Justice P.O. Box 146 

### Benjamin Franklin Station Washington, DC 20044-0146 Tel: (202) 616-4118