In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS
********************* BRITTANY ARNOLD, * No. 15-534V Guardian of minor, L.A., * Special Master Christian J. Moran * Petitioner, * * Filed: March 6, 2017 v. * * Stipulation; hepatitis A vaccine; SECRETARY OF HEALTH * pneumococcal conjugate vaccine; AND HUMAN SERVICES, * febrile convulsions; developmental * delays. Respondent. * ********************* Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner; Lara A. Englund, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On March 3, 2017, the parties filed a joint stipulation concerning the petition for compensation filed by Brittany Arnold as Guardian of L.A., a minor, on May 26, 2015. In her petition, petitioner alleged that the hepatitis A and pneumococcal conjugate vaccines, which are contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which were received on July 23, 2012, caused L.A. to suffer febrile convulsions and developmental delays. 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 L.A.’s behalf as a result of this condition.
Respondent denies that the hepatitis A and pneumococcal conjugate vaccines caused L.A. to suffer febrile convulsions or any other injury.
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. 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 $12,848.40, which amount represents reimbursement of a lien for services rendered on behalf of L.A., in the form of a check payable jointly to petitioner, Brittany Arnold, and
Wellpoint Partnership Plan, LLC Attn: Anel Mendez – Mail Drop AC-10C 21555 Oxnard Street Woodland Hills, CA 91367
Petitioner agrees to endorse this check to WellPoint Partnership Plan, LLC.
B. An amount not to exceed $250,000.00 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”).
This amount 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 judgment in case 15-534V according to this decision and the attached stipulation.2
Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357- 6360.
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 IT IS SO ORDERED.
s/Christian J. Moran Christian J. Moran Special Master
3 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
BRITT ANY ARNOLD, guardian for minor, L.A ., ) ) Petitioner, ) ) v. ) No. l 5-534V ) Special Master C hristian Moran SECRETARY OF ) HEALTH ANO HUMAN SERV ICES, ) ) Respondent ) ~~~~~~~~~~~~~~~~~~~>
STIPULATION
The parties hereby stipul ate to the fo llow ing matters:
I. On behalf of her daughter, L.A., petitioner filed a petition for vaccine compensation
under the ational Vaccine Injury Compensation Program. 42 U.S.C. § 300aa- l 0 to 34 (the
··vacci ne Program"). The petition seeks compensation for inj uries allegedl y re lated to L. A. 's
receipt of the hepatitis A and pncumococcal conj ugate vaccines. which vaccines are conta ined in
the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100 .3 (a).
2. L.A. received hepatitis A and pneumococcal conj ugate vaccines on July 23, 2012.
3. The vaccines were adm inis tered within the United States.
4. Petitioner alleges that L.A. suffered febri le convu ls ions and developmental delays as a
res ult of the hepatitis A and pneumococcal conjugate vaccines and that s he suffered the residual
effects of this injury fo r more than s ix months.
5. Petitioner represents that there has been no prior award o r settlement of a ci vil action
for damages on behalf of L.A. as a result of her condition .
6. Respondent denies that the hepatitis A and pneumococcal conjugate vaccines caused
L.A. ·s febri le convuls ions, deve lopmenta l delays, or any other injury or her current conditio n. 7. Maintaining their above-stated pos itions, the parties neverthe less now agree that the
issues between them s hal I be settled and that a decision should be ente red awarding the
compensatio n described in parag raph 8 of this Stipulation.
8. As soo n as practicable after an entry of judgment re fl ecting a decis io n cons istent with
the terms of this Stipulation. a nd afte r petiti oner has fil ed an election to recei ve compensation
purs uant to 42 U.S.C. § 300aa-2 l(a)( 1), the Secretary of Health and Human Services w ill issue
the fo llowing vacci ne compensation payments:
a. A lump sum of $ 12,848 .40, w hich amount represents reimbursement of a lie n for services rendered on behalf of L.A., in the fo m1 of a check payable j ointly to petitioner and WellPoint Partnership Plan. LLC Attn: Anel Mendez - Mail Drop AC-I OC 2 1555 Oxnard Street Woodland Hill s, CA 9 1367
Petitioner agrees to endorse this check to WellPoint Partnership Plan, LLC.
b. An amount no t to exceed $250,000.00 to pu rchase the annuity contract described in paragraph 10 below, paid to the li fe insurance company from whic h the annuity wi ll be purchased (the "Life Insurance Company").
The amo unt set forth in thi s paragraph 8. b. represents compe nsation for all damages that wou ld be available unde r 42 U.S.C. §300aa- l 5(a).
9. The Life Insuranct: Company must have a minimum of $250,000.000.00 capital and
surp lus, exclus ive of any manda tory security valuation reserve. The life Insurance Company
mus t have one o f the follow ing ratings from two o f the follow ing rating organizations:
a. A.M. Best Company: A ++, A+, A+g, A+ p, A+r, or A+s;
b. Mood y's Investor Service C laims Paying Rating: Aa3, Aa2, Aa 1, or Aaa;
c. Standard and Poor' s Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, o r AAA;
d.
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS
********************* BRITTANY ARNOLD, * No. 15-534V Guardian of minor, L.A., * Special Master Christian J. Moran * Petitioner, * * Filed: March 6, 2017 v. * * Stipulation; hepatitis A vaccine; SECRETARY OF HEALTH * pneumococcal conjugate vaccine; AND HUMAN SERVICES, * febrile convulsions; developmental * delays. Respondent. * ********************* Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner; Lara A. Englund, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On March 3, 2017, the parties filed a joint stipulation concerning the petition for compensation filed by Brittany Arnold as Guardian of L.A., a minor, on May 26, 2015. In her petition, petitioner alleged that the hepatitis A and pneumococcal conjugate vaccines, which are contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which were received on July 23, 2012, caused L.A. to suffer febrile convulsions and developmental delays. 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 L.A.’s behalf as a result of this condition.
Respondent denies that the hepatitis A and pneumococcal conjugate vaccines caused L.A. to suffer febrile convulsions or any other injury.
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. 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 $12,848.40, which amount represents reimbursement of a lien for services rendered on behalf of L.A., in the form of a check payable jointly to petitioner, Brittany Arnold, and
Wellpoint Partnership Plan, LLC Attn: Anel Mendez – Mail Drop AC-10C 21555 Oxnard Street Woodland Hills, CA 91367
Petitioner agrees to endorse this check to WellPoint Partnership Plan, LLC.
B. An amount not to exceed $250,000.00 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”).
This amount 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 judgment in case 15-534V according to this decision and the attached stipulation.2
Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357- 6360.
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 IT IS SO ORDERED.
s/Christian J. Moran Christian J. Moran Special Master
3 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
BRITT ANY ARNOLD, guardian for minor, L.A ., ) ) Petitioner, ) ) v. ) No. l 5-534V ) Special Master C hristian Moran SECRETARY OF ) HEALTH ANO HUMAN SERV ICES, ) ) Respondent ) ~~~~~~~~~~~~~~~~~~~>
STIPULATION
The parties hereby stipul ate to the fo llow ing matters:
I. On behalf of her daughter, L.A., petitioner filed a petition for vaccine compensation
under the ational Vaccine Injury Compensation Program. 42 U.S.C. § 300aa- l 0 to 34 (the
··vacci ne Program"). The petition seeks compensation for inj uries allegedl y re lated to L. A. 's
receipt of the hepatitis A and pncumococcal conj ugate vaccines. which vaccines are conta ined in
the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100 .3 (a).
2. L.A. received hepatitis A and pneumococcal conj ugate vaccines on July 23, 2012.
3. The vaccines were adm inis tered within the United States.
4. Petitioner alleges that L.A. suffered febri le convu ls ions and developmental delays as a
res ult of the hepatitis A and pneumococcal conjugate vaccines and that s he suffered the residual
effects of this injury fo r more than s ix months.
5. Petitioner represents that there has been no prior award o r settlement of a ci vil action
for damages on behalf of L.A. as a result of her condition .
6. Respondent denies that the hepatitis A and pneumococcal conjugate vaccines caused
L.A. ·s febri le convuls ions, deve lopmenta l delays, or any other injury or her current conditio n. 7. Maintaining their above-stated pos itions, the parties neverthe less now agree that the
issues between them s hal I be settled and that a decision should be ente red awarding the
compensatio n described in parag raph 8 of this Stipulation.
8. As soo n as practicable after an entry of judgment re fl ecting a decis io n cons istent with
the terms of this Stipulation. a nd afte r petiti oner has fil ed an election to recei ve compensation
purs uant to 42 U.S.C. § 300aa-2 l(a)( 1), the Secretary of Health and Human Services w ill issue
the fo llowing vacci ne compensation payments:
a. A lump sum of $ 12,848 .40, w hich amount represents reimbursement of a lie n for services rendered on behalf of L.A., in the fo m1 of a check payable j ointly to petitioner and WellPoint Partnership Plan. LLC Attn: Anel Mendez - Mail Drop AC-I OC 2 1555 Oxnard Street Woodland Hill s, CA 9 1367
Petitioner agrees to endorse this check to WellPoint Partnership Plan, LLC.
b. An amount no t to exceed $250,000.00 to pu rchase the annuity contract described in paragraph 10 below, paid to the li fe insurance company from whic h the annuity wi ll be purchased (the "Life Insurance Company").
The amo unt set forth in thi s paragraph 8. b. represents compe nsation for all damages that wou ld be available unde r 42 U.S.C. §300aa- l 5(a).
9. The Life Insuranct: Company must have a minimum of $250,000.000.00 capital and
surp lus, exclus ive of any manda tory security valuation reserve. The life Insurance Company
mus t have one o f the follow ing ratings from two o f the follow ing rating organizations:
a. A.M. Best Company: A ++, A+, A+g, A+ p, A+r, or A+s;
b. Mood y's Investor Service C laims Paying Rating: Aa3, Aa2, Aa 1, or Aaa;
c. Standard and Poor' s Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, o r AAA;
d. Fitch C redit Rating Company, Insurance Company C laims Paying Ab ility Rating: AA-, AA. AA+, or AAA. I 0. The Secretary of Health and Human Services agrees to purc hase an a nnuity contract
fro m the Life Insurance Compan y fo r the bene fi t of L. A., pursuant to which the Life lnsurance
Company wi ll agree to make paym ents peri odica lly to L.A. fo r all damages that wou ld be
avail abl e under 42 U.S.C. §300aa- l 5(a) , as fo ll ows:
a. $103,627.65 payable in a certain lump sum o n J uly 14, 2032.
b. $1 18.353.45 payable in a certain lump sum on July 14, 2035.
c. $133,685.83 payable in a certain lump s um on Jul y 14, 2038.
d. $150,397.77 payable in a certain lump sum on Jul y 14, 2041.
T he purc hase price of the annuity shall not exceed $250,000.00. In the event that the cost of the
annu ity payments set forth above varies fro m $250,000.00, the final payme nt o n Jul y 14, 2041,
listed above, s hall be adjusted to e nsure that the tota l cost of the annu ity is ne ither less nor
greater tha n $250,000.00 . L.A. w ill continue to receive the ce11ain lump s um annuity payments
from the Li fc Insurance Company fo r the period indicated above. Should L.A. pred ecease the
exhaustion of any ce11ai n payments set fo rth above, any re ma ining certain payments s hall be
made to her estate. However, w ritten no tice to the Secretary of Health a nd Huma n Services and
the Life Insurance Company s ha ll be made with in twenty (20) days of L.A. ·s death .
I I . The a nnuity contract w ill be owned solely a nd exclus ively by the Secre tary o f Health
and Human Services and will be purchased as soon as prac ticable fo llowing the entry o f a
judgment in conformity w ith thi s Stipulatio n. The parties s tipulate and agree tha t the Sec retary
o f Health a nd Human Serv ices and the United States of Ame1ica are not respons ible fo r the
payment of an y sums o ther than the amo unts set fo rth in paragraph 8 he re in and the amounts
awarded pursuant to paragraph 12 he rein. and that they do no t g uarantee o r insure any of the
future a nnuity payme nts. Upo n the purc hase of the annuity contract, the Secretary of Health and
2 Human Services and the United States of America are released fro m any and all ob ligatio ns with
respect to future annui ty payments.
12. A s soon as practicable after the entry o f judgment on entitlement in this case, and
after petitioner has fil ed bo th a proper and timely election to receive compensatio n pursuant to
42 U.S.C. § 300aa-2 l(a)( l ), and an application, the parties wi ll sub mit to further proceedings
before the special master to award reasonable attorneys' fees and costs incurred in proceed ing
upon thi s petition.
13. Petitioner and her attorney represent that compensation to be provided pursuant to
this Stipulation is not for any items or serv ices for w hich the Program is not primarily li able
under 42 U.S.C. § 300aa- l 5(g), to the ex tent that payment has been made or can reasonably be
expected to be made under any State compensatio n programs, insurance po lic ies, Federal or
State health benefits programs (other than T itle X IX of the Social Security Act (42 U.S.C.
§ 1396 et seq.)). or by ent ities that provide hea lth services o n a pre-paid basis.
14. Payments made purs uant to paragraph 8 and any amo unts awarded pur uant to
paragraph 12 of this Stipulation wi ll be made in accordance with 42 U.S.C. § 300aa-J 5(i).
s ubject to the avai labi lity of sufficient statutory funds.
15. The parties and the ir atto rneys rurther agree and stipulate that, except fo r any award
fo r attorneys· fees and litigatio n costs, and past unreimbursable expe nses, the mo ney provided
pursuant to thi s Stipulatio n either immediately, o r as part of the annuity co ntrac t, will be used
solely for the benefit o f L.A. as contemplated by a strict construc tio n of 42 U.S.C.
§300aa-l 5(a) and (cl). and subject to the conditio ns of 42 U.S.C. § 300aa- l 5(g) and (h).
16. In return fo r the payments described in paragraphs 8 and 12. petitioner, in her
indi vidual capacity and as legal representati ve of L.A ., o n be half of herself, L.A ., and her heirs,
3 executors, administrators, successors or assigns. do forever inevocably and unconditionally
release, acquit and discharge the United States and the Secretary of Health and Human Services
from any and all acti ons or causes or action (including agreements, judgments, clai ms, damages,
loss of services. expenses and all demands of whatever kind or nature) that have been brought,
could have been brought. or could be timel y brought in the Cou11 of Federal Claims, under the
ational Vacc ine 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 L.A. resulting from. or al leged to have resulted from. the vaccinations
administered on Jul y 23 , 2012, as al leged by petitioner in a petition for vaccine compensation
fil ed on or about May 26. 2015, in the United States Cou11 of Federa l Claims as petition No . 15-
534 V.
17. Ir L.A. should die prior to entry o!"judgment, this agreement shall be voidable upon
proper notice to the Court on behalf of either or both of the pa11ies.
18. If the special master fail s to issue a dec ision in complete conformity with the te1ms
of thi Stipulation or if the Cou11 of Federal Claims fail s to enter judgment in conformity with a
decision that is in complete confo nnity with the terms of this Stipul ation. then the parties·
settlem ent and this Stipulation shall be voidable at the so le disc retion or either pany.
19. This Stipulation expresses a full and complete negotiated settlement o f liabi lity and
damages claimed under the ational Childhood Vacc ine Injury Act of 1986, as amended, except
as othe1wise noted in paragraph 12 above. There is absolutely no agreement on the pa11 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 funher agree and understand that the award described in this
Stipulation may reflect a compromise or the panics· respective positions as to liabi lity and/or
4 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. Peti tioner hereby authorizes respondent to disclose documents fil ed by petitioner in
thi s case consistent with the Privacy Act and the routine uses described in the National Vacci ne
Injury Compensation Program System or Records, No. 09- 15-0056.
2 1. Thi s Stipulation shall not be construed as an admission by the United States or the
Secretary or Hea lth and Human Services that the hepatitis A and pneumococcal conjugate
vacci nes caused L.A. to suffer febrile convu lsions and developmental delays or any other injury
or condition.
22. All rights and obligations or petitioner hereunder shall apply equall y to petitioner's
heirs. executors, admini strators, successors, and/or assigns as legal representatives of L.A.
E1 D OF ST!PULATIO
5 Respectfully submitted,
PETITIONER:
~ 131ll'f'l~ ATTORNEY or RCCORD FOR AUTI IORIZED REPRESENTATIVE PETlTI ONr·:R: OF Tl IE /\Tl'ORN l ~Y GENER/\ I,:
_Efe___ _ PAUL BRAZii. ML:LLFR RRAZll., LLP ~EV~ Deputy Oirc<.;tor 0.1c: Loga1t Squ\ttv fn Torts n rano..:h 715 Twir.ing Roud Civil Division uitc I 07 U.S. Ocpartmcnt of Justice Drt::)hcr, PA l 9025 P.O. Box 146 (215) 835-1655 lknjamin Franklin St:u:on Washington. DC 20044-0146
r\U1 I IORIZEO REPRESE~TA lIVE AlTORNEY OF Rl:CORD FOR or THE SECRETARY OF llEALTH RESPONDENT: AND I !UM NSF v cr:s:
~~-~ LARA A. ENGLUND Din;ctor, Di vision of Trial Attorney lnju:·y C:ornro..:nsation Progr::uns Torts l3ranch I lcalthcMe Systems Bureau Civil Division ll.S. fkpuru11t!1H of I lenlch lJ.S. Department of Justice :rnd H urnu n Scrvkes P.O. Onx l 46 5600 rishas Lane Fkn~ amin rrauklin Station l\1rkkn\11 l3ui!Jing, Mai'. Stop 08Nl46B Washington, DC 200·14-0146 Rockville, MD 20857 (202) 307-3013