In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

DIANE M. ZGLENSKI, *

* No. 12-701V

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, United States Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION1

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, Ms. 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 she received 

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

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 The 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 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.

 
Damages 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 12-701V according to this decision 

and the attached stipulation.2

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

357-6521.

 

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.

2

 
IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________

)

DIANE M. ZGLENSKI, )

)

 Petitioner, )

 v. )

) No. 12-701V 

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 her influenza immunization on October 13, 2009.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she suffered 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 her behalf as a result of her condition.

6. Respondent denies that the influenza 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 7
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 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 $315,000.00, which amount represents 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; 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”).

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;

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 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 

follows:

2

Case 1:12-vv-00701-UNJ Document 45 Filed 11/06/14 Page 2 of 7
a. For future unreimbursable Neurologist, Bupivicaine/Lidocaine Injection, Dr. Harris, 

and Miscellaneous Co-pay expenses, beginning on the first anniversary of the date of 

judgment, an annual amount of $1,570.00 to be paid up to the anniversary of the date of 

judgment in year 2023, increasing 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 annual amount of $235.00 to be paid

up to the anniversary of the date of judgment in year 2023, increasing at the rate of four

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

c. For future unreimbursable Health Insurance Premium expenses, beginning 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, increasing 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, increasing at the rate of three percent (3%), 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 

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. Petitioner 

will continue to receive the annuity payments from the Life Insurance Company only so long as 

she, 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 twenty (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 7
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 to 

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 her 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 (other 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. §§ 300aa15(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 7
16. In return for the payments described in paragraphs 8 and 12, petitioner, in her

individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns, 

does forever 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 and 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 petitioner in a petition for vaccine compensation filed on or about October 

17, 2012, in the United States Court of Federal Claims as petition No. 12-701V.

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 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 7
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. 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 influenza vaccine caused petitioner’s Cervical 

Transverse Myelitis or any other injury.

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

heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

/

/

/

/

/

/

/

/

/

/

/

/

/

/

/

/

6

Case 1:12-vv-00701-UNJ Document 45 Filed 11/06/14 Page 6 of 7
Case 1:12-vv-00701-UNJ Document 45 Filed 11/06/14 Page 7 of 7