# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS



### * * * * * * * * * * * * * * * * * * * * * CAROL T. NOSCHES, * * No. 16 -1657V Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES, * Special Master Christian J. Moran

* * Filed: August 29, 2018

* Reissued: December 21, 2018 * Stipulation; influenza vaccine; * Guillain-Barré syndrome.

* * Respondent. * * * * * * * * * * * * * * * * * * * * * * Lisa Roquemore
, Law Office of Lisa A. Roquemore
, Rancho Santo Margarita, CA
, for Petitioner; Christine M. Becer, United States Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION 1



### On August 28
, 2018, the parties filed a joint stipulation concerning the petition for compensation filed by Carol T. Nosches on December 16, 2016

. Petitioner alleged that the influenza (“flu”) vaccine she received on or about October 28, 2014 , which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), caused her to suffer Guillain-Barré syndrome. Petitioner further alleges that she suffered the residual 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 on her behalf as a result of her condition.

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



### Respondent denies that the vaccines either caused or significantly aggravated petitioner’s alleged injury or any other injury, and denies that petitioner's current disabilities are the result of a vaccine-related injury

. 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:

1. A lump sum of $660,634.97 which amount represents compensation for first year life care expenses ($158,788.19), lost earnings ($306,846.78), pain and suffering ($175,000.00), and past unreimbursable expenses ($20,000.00), in the form of a check payable to petitioner; and

2. An amount sufficient to purchase the annuity contract described in paragraph 10 of the attached stipulation, 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).
In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 16 -1657V 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 Federal Claims judge.IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

____________________________________ ) CAROL T. NOSCHES
, ) ) Petitioner, )

v. ) ) No. 16

- 1657 V SECRETARY OF HEALTH ) Special Master Moran AND HUMAN SERVICES ) ) Respondent. ) ____________________________________)

STIPULATION
The parties hereby stipulate to the following matters:

1. Carol T. Nosches , petitioner, filed a pet ition 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 the influenza (“flu”) va ccine, which vaccine is contained in the Vaccine Injury Table (the

“Table”), 42 C.F.R. § 100.3 (a).

2. Petitioner received a flu vaccine and a tetanus vaccine on or about October 28, 2014

.
3. The vaccination s were administered within the United States.
4. Petitioner alleges that s he su ffered from Guillain

- Barrè Syndrome (“GBS”) as a result

of receiving the flu vaccine
, and further alleges that she experienced the residual effects of this

condition for more than six months.
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 flu vaccine or tetanus vaccine caused petitioner to suffer

from GBS o r any other injury

.2 7. Mai ntaining 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 practicab le after an entry of judgment reflecting a decision consistent with
the terms of this Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa

- 21(a)(1), the Secretary of Health and Human Services will is sue
the following vaccine compensation payments:

a. A lump sum of $ 660,634.97 which amount represents compensation f or first year life care expenses ($ 158,788.19 )
, lost earnings ($ 306,846.78 ), pain and suffering ($ 175,000.00 )
, and past unreimbursable expe nses ($ 20,000.00 )
, 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 insurance company from which the annuity will be purchased (the “Life Insuran ce 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 Company
must have one of the following ratings from two of the following rati ng 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.3 10. The Secretary of Health and Human Services agrees to purchase an annuity contract 1

from the Life Insurance Company for the benefit of petitioner, Carol T. Nosches , pursuant to
which the Life Insurance Company will agree to make payments periodically to petitioner as

follows:

a. For future unreimbursable Medicare Supp lement F and Medicare Part D expenses , beginning on the first anniversary of the date of judgment, an annual amount of $4,421.45 to be paid for the remainder of petitioner’s life, increasing at the rate of five percent ( 5%), compounded annually from the date of judgment.

b. For future unreimbursable expenses , beginning on the first anniversary of the date of judgment, an annual amount of $300.00 to be paid for the remainder of petitioner’s life, increasing at the rate of five percent (5%), compounded annually from the date of judgment.

c. For future unreimbursable expenses , beginning on the first anniversary of the date of judgment, an annual amount of $134.00 to be paid for the remainder of petitioner’s life, increasing at the rate of four percent ( 4%), compounded annually from the date of judgment.

d. For fu ture unreimbursable expenses , beginning on the first anniversary of the date of judgment, an annual amount of $510.00 to be paid for the remainder of petitioner’s life, increasing at the rate of four percent ( 4%), compounded annually from the date of judgment.

e. For future unreimbursable Home Care expenses , beginning on the first anniversary of the date of judgment, an annual amount of $144,540.00 to be paid for the remainder of petitioner’s life, increasing at the rate o f four percent ( 4%), compounded annually from the date of judgment.

f. For future unreimbursable Case Management expenses , beginning o n the first anniversary of the date of judgment, an annual amount of $2,640.00 to be paid for the remainder of petitione r’s life, increasing at the rate of four percent ( 4 %), compounded annually from the date of judgment.
g. For future unreimbursable Neurologist Mileage , Oncologist Mileage
, Ophthalmologist Mileage
, and Occupational Therapy Mileage expenses , beginning on t he first anniversary of the date of judgment, an annual amount of $874.08 to be paid up to the anniversary of the date of judgment in year 2021. Thereafter, beginning on the anniversary of the date of judgment in year 2021, an annual amount of $853.92 to be paid for the remainder of

1 To satisfy the conditions set forth herein, in respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies.4 petitioner’s life, all amounts increasing at the rate of four percent ( 4 %), compounded annually from the date of judgment.

h

. For future unreimbursable Rollator Walker, Manual W heelchair , Manual W heelchair Maint enance , Cane, Shower Bench, Handheld Shower, ADL, Raised Toilet Seat, and Lifeline expenses , beginning o n the first anniversary of the date of judgment, an annual amount of $574.90 to be paid for the remainder of petitioner’s life, increasing at the rate of four percen t ( 4 %), compounded annually from the date of judgment.

At 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

install ments. The “ annual amounts ” set forth above describe 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 Insuranc e Company only so long as

s he, Carol T. Nosches , is alive 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 Carol T. Nosch es ’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 stipu late 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 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 f uture annuity payments.
12. As soon as practicable after the entry of judgment on entitlement in this case, and5 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 applicatio n, 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 represent that they have identified to respondent all

kno wn 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 Socia l Security Act

(42 U.S.C. § 1396 et seq.)), or entities that 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 sufficient 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 mo ney provided
pursuant to this Stipulation either immediately 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).
16. In return for the payments 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 uncondition ally 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 timely6 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 a nd all
known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting
from, or alleged to have resulted from, the flu vaccine or tetanus vaccine administered on or

about October 28, 2014 , as alleged by petitioner in a peti tion for vaccine compensation filed on

or about December 16, 2016
, in the United States Court of Federal Claims as petition No. 16

-

1657 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 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 i s 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 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 oth er 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 fur ther, 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.7 20. Petitioner hereby authorizes respondent to disclose documents filed by petitioner in

this case co nsistent 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 Hea lth and Human Services that the flu vaccine or tetanus vaccine caused
petitioner’s GBS 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 as signs.

END OF STIPULATION
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