# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

DIANE M. ZGLENSKI

, *

* No. 12

- 701 V Petitioner, * Special Master Moran

*

v. * Filed: November 7 , 2014

*

SECRETARY OF HEALTH * Stipulation; influenza vaccine ; AND HUMAN SERVICES, * cervical transverse myelitis.

* Respondent. *

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

Charles J. Weiss

, Timoney Knox, LLP, Fort Washington, PA, for Petitioner;

Ann D. Martin

, U nited States Dep’t of Justice, Washington, DC

, for Respondent.

UNPUBLISHED DECISION 1



### On November 6, 2014 , respondent filed a joint stipulation concerning the petition for compensation filed by Diane Zglenski on October 17 , 2012 . In her petition, M s. Zglenski alleged that the influenza vaccine , which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which s he received

on October 13, 2009 , caused her to suffer Cervical Transverse Myelitis

. Petitioner

repres ents that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition.

Respondent denies that the influenza vaccine caused petitioner to suffer from Cervical Transverse Myelitis or any other injury.

Nevertheless, the parties agree to the joint stipulation, attached hereto as “Appendix A.” The undersigned finds said stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

1 T he E

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

- 347, 116 Stat. 2899, 2913 (Dec. 17, 2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the party has 14 days to file a motion proposing redaction of medical inform ation 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.

### Damage s awarded in that stipulation include:

A. A lump sum payment of $ 315,000.00 , representing compensation for first year life care expenses ($ 7,360.00 ) , lost earnings ($ 176,618.72 ), pain and suffering ($ 117,894.22 ), and past unreimbursable expenses ($ 13,127.06 ), in the form of a check payable to petitioner Diane M. Zglenski ; and

B. An amount sufficient to purchase the annuity contract described in paragraph 10 of the attached stipulation.

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 12

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



### Any questions may be directed to my law clerk, Christina Gervasi , at (202)

357

- 6 521

.

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.

2IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________ )

DIANE M. ZGLENSKI

, ) ) Petitioner, )

v. ) ) No. 1 2

- 701 V

SECRETARY OF HEALTH ) Special Master Moran

AND HUMAN SERVICES ) ECF ) Respondent. ) ____________________________________)

STIPULATION

The parties hereby stipulate to the following matters:

1. Diane M. Zglenski , 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 vaccine, 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 13, 2009

.

3. The vaccination was administered within the United States.

4. Petitioner alleges t hat s he su ffered Cervical Transverse Myelitis 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. Respo ndent denies that the in flu enza vaccine caused petitioner to suffer from Cervical

Transverse Myelitis or any other injury

.

7. Maintaining their above

- stated positions, the parties nevertheless now agree that the Case 1:12-vv-00701-UNJ Document 45 Filed 11/06/14 Page 1 of 7issues 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 practicable 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 issue

the following vaccine compensation payments:

a. A lump sum of $ 3 15,000.00 , which amount represents compensation f or fir st year life care expenses ($ 7,360.00 )

, lost earnings ($176,618.72), pain and suffering ($ 117,894.22 )

, and past unreimbursable expenses ($13,127.06), in the form of a check payable to petitioner ; and

b

. An amount sufficient to purchase the annuity contr act described in paragraph 10 below, paid to the life insurance 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 mand atory 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;

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 o f Health and Human Services agrees to purchase an annuity contract

from the Life Insurance Company for the benefit of petitioner, Diane M. Zglenski , pursuant to

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

foll ows:

2 Case 1:12-vv-00701-UNJ Document 45 Filed 11/06/14 Page 2 of 7a

. For future unreimbursable Neurologist, Bupivicaine/Lidocaine Injection, Dr. Harris,

and Miscellaneous Co

- pay expenses
, beginning o n the first anniversary of the date of judgment, an annual amount of $ 1,570.00 to be paid up to the anniversary of th e date of judgment in year 20 2 3, i ncreasing at the rate of four percent ( 4 %), compounded annually from the date of judgment.

b

. For future unreimbursable MRI and Blood Work expenses
, beginning on the anniversary of the date of judgment in year 2018 , an a nnual amount of $ 235 .00 to be paid up to the anniversary of the date of judgment in year 2023, i ncreasing at the rate of four percent ( 4 %), compounded annually from the date of judgment.

c. For future unreimbursable Health Insurance Premium expenses, beg inning on the anniversary of the date of judgment in year 2018, an annual amount of $ 7,361.52 to be paid up to the anniversary of the date of judgment in year 2023, i ncreasing at the rate of

four percent ( 4 %), compounded annually from the date of judgment.

d

. For future unreimbursable Ancillary Services

, beginning on the first anniversary of the date of judgment , an annual amount of $ 4,365 .00 to be paid for the remainder of petitioner’s life, increasi ng at the rate of three percent ( 3 %), compounded annually from the date of judgment.

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, quar terly, annual or other

installments. 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 p ayments from the Life Insurance Company only so long as

s he, Diane M. Zglenski , 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 twe nty (20) days of Diane M. Zglenski ’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 and the amounts

3 Case 1:12-vv-00701-UNJ Document 45 Filed 11/06/14 Page 3 of 7awarded p ursuant 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 a ll 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. § 3 00aa

- 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 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 (o ther than Title XIX of the Social 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 money 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).

4 Case 1:12-vv-00701-UNJ Document 45 Filed 11/06/14 Page 4 of 716. 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 for ever irrevocably 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 a nd 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 13,

2009 , as alleged by petiti oner in a petition for vaccine compensation filed on or about October

17, 2012 , in the United States Court of Federal Claims as petition No. 1 2

- 7 01 V.

17. If petitioner should die prior to entry of judgment, this agreement shall be voidable

upon proper no tice 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

dec ision 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 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 agree and understand that the award described in this

5 Case 1:12-vv-00701-UNJ Document 45 Filed 11/06/14 Page 5 of 7Stipulation may reflect a compromise of the parties’ respective positions as to liability and/or

amount of dama ges, 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. 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

Secr etary of Health and Human Services that the influenza vaccine caused petitioner’s Cervical

Transverse Myelitis or any other injury.

2 2

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

heirs, executors, administrator s, successors, and/or assigns.

END OF STIPULATION

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