Judges: Christian J. Moran
Filed: Sep. 05, 2017
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ******************** * Z.I., a minor by her parent, * MUHAMMAD IYAZ, * * No. 15-622V Petitioner, * Special Master Christian J. Moran * v. * Filed: August 7, 2017 * SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine; AND HUMAN SERVICES, * acute disseminated encephalomyelitis * (“ADEM”). Respondent. * ******************** * Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for Petitioner; Christine M. Becer, U.S. Dep
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ******************** * Z.I., a minor by her parent, * MUHAMMAD IYAZ, * * No. 15-622V Petitioner, * Special Master Christian J. Moran * v. * Filed: August 7, 2017 * SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine; AND HUMAN SERVICES, * acute disseminated encephalomyelitis * (“ADEM”). Respondent. * ******************** * Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for Petitioner; Christine M. Becer, U.S. Dep’..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
Z.I., a minor by her parent, *
MUHAMMAD IYAZ, *
* No. 15-622V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: August 7, 2017
*
SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine;
AND HUMAN SERVICES, * acute disseminated encephalomyelitis
* (“ADEM”).
Respondent. *
******************** *
Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for Petitioner;
Christine M. Becer, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On May 19, 2017, the parties filed a joint stipulation concerning the petition
for compensation filed by petitioner, on behalf of his daughter, Z.I., on June 18,
2015. In the petition, petitioner alleged that the influenza vaccine, which is
contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and
which Z.I. received on October 23, 2012, caused Z.I. to suffer acute disseminated
encephalomyelitis (“ADEM”). Petitioner represents that there has been no prior
award or settlement of a civil action for damages on behalf of Z.I. as a result of her
condition.
Respondent denies that the influenza vaccine caused Z.I. to suffer from
ADEM or any other injury or her current 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.
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 $238,417.48, which amount represents
compensation for first year life care expenses ($48,417.48) and pain
and suffering ($190,000.00), in the form of a check payable to
petitioner as guardians(s)/conservator(s) of the estate of Z.I. for the
benefit of Z.I.
b. A lump sum payment of $64,695.33, which amount represents
reimbursement of a lien for services rendered on behalf of Z.I., in the
form of a check payable jointly to petitioner and
Pennsylvania Department of Human Services
Bureau of Program Integrity
Division of Third Party Liability/Recovery Section
Attn: Wanda Durf
P.O. Box 8486
Harrisburg, PA 17105-8486
CIS #400733887
Petitioner agrees to endorse this check to the Pennsylvania Department
of Human Services.
c. 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 judgment in case 15-622V
according to this decision and the attached stipulation.2
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 SPEClAL MASTERS
Z. I., a minor by her parent, )
MUHAMMAD IY AZ, )
)
Petitioner, )
v. ) No. 15-622V
) Special Master Moran
SECRETARY OP HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
~~~~~~~~~~~~~~)
STIPULATJON
The parties hereby stipulate to the following matters:
I. On behalf of his daughter, Z. I., petitioner fi led a petition for vaccine compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-I 0 to 34 (the
''Vaccine Program"). The petition seeks compensation for injuries allegedly related to Z. I. 's
receipt of the influenza ("flu") vaccine, which vaccine is conta ined in the Vaccine Injury Table
(the ''Table"), 42 C. F.R . § 100.3 (a).
2. Z. I. received the flu immunization on October 23, 20 12.
3. The vaccine was administered within the United States.
4. Petitioner alleges that Z. I. suffered from acute disseminated encephalomyel itis
(''ADEM'') as a result of receiving the vaccine.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on behalf of Z. I. as a result of her condition.
6. Respondent denies that the vaccine caused Z.I. to suffer from ADEM, or any other
injury or her cmrent cond ition.
7. Maintaining their above-slated positions, the parties nevertheless now agree that the
issues between them shall be settled and that a decision should be entered awa rding the
compensation described in paragraph 8 of this Stipulation.
8. As soon as practicable after an entry of j udgment 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-2 I (a)( I ), the Secretary of Health and Human Services will issue
the fo llowing vaccine compensation payments:
a. A lump sum of $238,41 7.48, which amount represents compensation for first year life
care expenses ($48,4 17.48) and pain and suffering ($ 190,000.00), in the form of a check
payable to petitioner as guardian(s)/conservator(s) of the estate of Z.1. for the benefit of
Z. I. No payments shall be made until petitioner provides respondent with documentation
establishing that he has been appointed as the guardian(s)/conservator(s) of Z. I. 's estate;
b. A lump sum of $64,695.33 which amount represent::; reimbursement of a lien for
services rendered on behalf of Z. I., in the form of a check payable jo intly to petitioner
and
Pennsylvania Department of Hrnnan Services
Bureau of Program Integrity
Di vision of Third Party Liab ility/Recovery Section
Attn: Wanda Durf
P.O. Box 8486
Harrisburg, PA 17105-8486
CIS #: 400733887
Petitioner agrees to endorse this check to the Pennsylvania Department .o f Human
Services.
c. An amount sufficient to purchase the annuity contract descri bed in paragraph I 0
below, paid to the life insurance company from which the annuity will be purchased (the
"Li fe Insurance Company").
9. The Li fe Insur_a nce Compan~ must have a minimum of $250,000,000.00 capita l and
surpl us, excl usive of any mandatory security valuation reserve. The Life Insurance Company
must have one of the fol lowing rati ngs from two of the fo llowing rating organizations:
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2
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, Aa I, or Aaa;
c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-,
AA, AA+, or AAA;
d. ritch Credit Rating Company, Insurance Company Claims Paying Ability Rating:
AA-, AA , AA+, or AAA.
I0. The Secretary of Health and Human Services agrees to purchase an annuity contract
from the Life Insurance Company for the benefit of Z. l., pursuant to which the Life Insurance
Company will agree to make payments periodically to petitioner, as the court-appointed
guardian(s)/conservator(s) of the estate of Z.l. fo r the following items of compensation:
n. For future unrei mbursable Hea lth Insurance Premium expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $1,887.48 to be paid up to the
ann iversary of the date of judgment in year 2030. Then, beginning on the anniversary of
the date of judgment in year 2030, an annual amount of $2,972.40 to be paid up to the
anniversary of the date ofjudgment in year 2034. Then, beginning on the anniversary of
the date of judgment in year 2034, an annual amount of $2,984. 16 to be paid up to the
anniversary of the date of judgment in year 2035. Then, beginning on the anniversary of
the date of judgment in year 2035, an annual amount of$3,043.68 to be paid up to the
anniversary of the date of judgment in year 2036. Then, beginning on the anniversary of
the date ofjudgment in year 2036, an annual amount of $3, 11 4.96 to be paid up to the
anniversary of the date of judgment in year 2037. Then, beginning on the anniversary of
the date of judgment in year 2037, an annual amount of $3,230.88 to be paid up to the
ann iversary of the date of judgment in year 2038. Then, beginning on the anniversary of
the duk of j udgment in year 2038, an annual amount of$3,326.04 to be paid up to the
anniversary of the date of judgment in year 2039. Then, beginning on the anniversary of
the date of judgment in year 2039, an annual amount of $4, 70 1.24 to be paid up to the
anniversary of the date of j udgment in year 2040. Then, beginning on the anni versary of
the date of judgment in year 2040, an annual amount of $4,800.60 to be paid up to the
anniversary of the date of judgment in year 204 1. Then, beginning on the anniversary of
the date of judgment in year 2041, an annual amount of $4,900.08 to be paid up to the
anniversary of the date of judgment in year 2042. Then, beginning on the anniversary of
the date of judgment in year 2042, an annual amount of $4,962. I2 to be paid up to the
anniversary of the date of judgment in year 2043. Then, beginning on the anniversary of
the date of \1d ment in ear 2043 an annual amount of $5,028.48 to be paid u to the
anniversary of the date of judgment in year 2044. TI1en, beginning on the anniversary of
the date of j udgment in year 2044, an annual amount of $5,061.60 to be paid up to the
anniversary of the date of judgment in year 2045. Then, beginning on the anniversary of
the date of j udgment in year 2045, an ann ual amount of $5,094.72 to be paid up to the
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3
anniversary of the date of judgment in year 2046, all amounts increasing at the rate of
four percent (4%), compounded annually from the date of judgment.
b. For future unreirnbmsable Health Insurance Maximum-out-of-Pocket expenses,
beginning on the first anniversary of the date of judgment, an annual amount of
$7, I50.00 to be paid up to the anniversary of the date of judgment in year 2046,
increasing at the rate of four percent (4%), compounded annual ly from the date of
judgment.
c. For future unreimbursable Medicare.Patt B Premium, Medigap C, and Medicare Part D
expenses, beginning on the anniversary of the date of judgment in year 2046, an annual
amount of $3,880.00 to be paid up to the anniversary of the date of judgment in year
2075. Then, beginning on the anniversary of the date of judgment in year 2075, an
annual amount of $3,949.60 to be paid up to the anniversary of the date of judgment in
year 2076. Then, beginni ng on the anniversary of the date of judgment in year 2076, an
annual amount of $4,020.40 to be paid up to the anniversary of the date of judgment in
year 2077. Then, beginning on the anniversary of the date of judgment in year 2077, an
annual amount of $4,092.40 to be paid up to the anniversary of the date of judgment in
year 2078. Then, beginning on the anniversary of the date of judgment in year 2078, an
annual amount of $4,165.60 to be paid up to the anniversary of the date of judgment in
year 2079. Thereafter, beginning on the anniversary of the date of judgment in year
2079, an annual amount of $5,226.40 to be paid for the remainder of Z.I. 's life, all
amounts increasing at the rate of four percenl (4%), compounded annually from the date
of j udgment.
d. For future unreimbursable Educational Support expense.s, beginning on the first
anniversary of the date of judgment, an annual amount of $15,620.00 to be paid up to the
anniversary of the date of judgment in year 2028, increasing at the rate of three percent
(3%), compounded annually from the date of judgment.
e. For future unreimbursable Home Health Aide expenses, beginning on the first
anniversary of the date of judgment, an annual amount of$22,500.00 to be paid up to the
second anniversary of the date ofjudgment, increasing at the rate of thrne percent (3%),
compounded annually from the date of j udgment.
f. For future unreimbursable Therapeutic Aide for Camp expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $1,260.00 to be paid up to the
second anniversary of the date of judgment, increasing at the rate of three percent (3%),
compounded annually from the date of judgment. ·
g. For future l]qreim!>111:sable _ResidynJ.ial Care expenses, beg_inning_on the anniversary of
the date of judgment in year 2032, an annual amount of $26,243 .50 to be paid for the
remainder of Z.l. 's life, increasing at the rate of three percenfT3"%},Co_m_p_o_t_
111-.a-
e-~-----------+-
annually from the date of judgment.
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4
h. For tl.tlure unreimbmsable Supported Employment expenses, beginning on the
anniversary of the date of judgment in year 2032, an annual amount of $29,000.00 to be
paid up to the anniversary of the date of judgment in year 2069, increasing at the rate of
three percent (3%), compounded annually from the date of judgment.
At the sole discretion of the Secrelary of Health and Human Services, the periodic payments may
be provided lo the petitioner in monthly, quarterly, annual or other installments. The ·'annual
amounts.. set forth above describe on ly the total yearly sum to be paid to the petitioner and do
not require that the payment be made in one ann ual installment. The petitioner will continue to
receive lhe annuity payments from the Life Insurance Company only so long as Z.I. is alive at
the time that a particular payment is due. Written notice to the Secretary of Health and Human
Services, and the Life Insurance Company shall be provided wiLhin Lwenty (20) days ofZ.l.'s
deaih.
I I. The annuity contract wil l be owned solely and exclusively by the Secretary of Health
and I Iuman Services and will be purchased as soon as practicable fo llowing 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 lhc 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 future annuity payments.
12. As soon as practicable after the entry of judgment on entitlement in this case, and
------""'
a~ ft=
e'--
r r-eLiLioner has filed both a r-roper and timely election to receiv~~n.-..:.pi:_e:..:.n.:..::s..:.;.at.:..;_io..:...1-1-'-.J:.p_u.:....:
rs--'- u-'-
an"'-t=---t:..::.
o_________+
42 U.S.C. § 300aa-2 1(a)(l), and an app lication, the parties wi ll submit to further proceedings
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5
before the special master to award reasonable attorneys' fees and costs incurred in pl'oceed ing
upon this petition.
13. Petitioner and hi s attorney represent that compensation to be prov ided pursuant to
this Stipulation is not fol' any items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-l 5(g), lo the extent that payment has been made or·can reasonably be
expected to be made under any State compensation programs, insurance policies, Federal or
State heal th benefi ts programs (other than Title XIX of the Social Security Act (42 U.S.C. §
1396 et seq.)), or by entities that prnvide hea lth services on a pre-paid basis.
14. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 12 of this Stipulation wi ll be made in accordance with 42 U.S.C. § 300aa- 15(i),
subject to the avai !ability of sufficient statutory funds.
15. The parties and their attorneys further agree and sti pulate that, except fo r any award
fo r attorneys' fees and litigation costs, the money provided pursuant to thi s Stipul ation will be
used solely for the benefit of Z.I. as contemplated by a strict construction of 42 U.S.C. §3 00aa-
l 5(a) and (d), and subject to the conditions of42 U.S.C. § 300aa- 15(g) and (h).
16. Petitioner represents that he presently is, or within 90 days of the date of judgment
wi 11 become, duly authorized to serve as guardian(s)/conservator(s) of Z. I. 's estate underthe
laws of the State of Alabama. No payments pursuant to this Stipulation shall be made until
petitioner provides the Secretary with documentation establishing his appointment as
guardian(s)/conservator(s) of Z.l.'s estate. If petitioner is not authorized by a court of competent
jurisdiction to serve as guardian(s)/conservator(s) of the estate of Z.I. at the time a payment
appointed by a court of competent jurisdiction to serve as guard ian(s)/conservator(s) of the estate
------------------------------
6
of Z. I. upon submission of written documentation of such appointment lo the Secretary.
17. In return for the payments described in paragraphs 8 and 12, petitioner, in his
individual capacity and as legal representative of Z. L, on behalf of himself, Z.L, and her heirs,
executors, administrators, successors or assigns, does forever irrevocab ly 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 actio~ (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 Inju ry 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 Z. I. resulting from, or alleged to have resulted from the vaccination
administered on October 23, 20 12, as alleged by petiti oner in a petiti on for vaccine compensation
fil ed on or about June 18, 2015, in the United States Court of Federa l Claims as petitio n No. J 5-
622V.
18. JfZ.I. 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.
19_ If the special master fai ls to issue a decision in complete conformity with the terms
of this Stipulation or if the Court of Federal Claims fa iIs to enter judgment in conformity with a
decision that is in complete conformity with the terms of this Stipulation, then the parties'
settlement and thi s Stipulation shall be voidable at the sole discretion of either party.
20. This Stipulation ex presses a full and complete negotiated settlement of liability and
------damages-cta-imed-ande1-the-Natiomtl-€hildhood-Vaceine--l n-jt1ry--Aeffif-l-9~6,-attffiettflecl,-elteepF----------1
as otherwise noted in paragraph 12 above_ There is absolutely no agreement on the part of the
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7
· 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
Stipulation may reflect a compromise of the parties' respective positions as to liability and/or
amount of dan:iages, and further, that a change in the nature of the injury or condition or in the
items of compensation sought, is not grounds to mod ify or revise this agreement.
2 1. Petitioner hereby authorizes respondent to disclose documents fil ed by petitioner in
this case consistent with the Pri v~cy Act and the routine uses described in the National Vaccine
Injury Compensation Program System of Records, No. 09-15 -0056.
22. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the vaccine caused Z. l. to suffer from ADEM, or
any other injury or condition.
23. All rights and obligations of petitioner here~inder shall apply equally to petitioner's
heirs, executors, adm inistrators, successors, and/or assigns as legal representatives of Z.I.
EN D OF STIPULATION
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Respectfu lly submitted,
PETITJONER:
'/ct.fi~ v--
M~MADIYAZ
u irector
T011s Branch
17 10 Sprnce Street Civi l Division
Philadelphia, PA 19103 U.S. Department of fostice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0 146
ATTORNEY OF RECORD FOR
RESPONDENT:
....
NARA Y . , M.D. CHRI ST INE M. BECER
Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 08N 1468 Washington, DC 20044-0 146
Rockville, MD 20857 Tel: (202) 616-3665
_,__/....__/'3.
Dated: _!: _,_,/'----'J__,]'-----
__ ________________________
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