Kristen Hope Zimmerman, by Her Mother, Jennifer D. Quinn v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 11-859V Filed: March 20, 2013 Not for publication

************************************* KRISTEN HOPE ZIMMERMAN, by her * mother, JENNIFER D. QUINN, * * Petitioner, * * Damages decision based on stipulation; v. * human papillomavirus vaccine; * somatoform disorder SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* Michael G. McLaren, Memphis, TN, for petitioner.

Darryl R. Wishard, Washington, DC, for respondent.

MILLMAN, Special Master DECISION AWARDING DAMAGES1 On March 20, 2013, the parties filed the attached stipulation in which they agreed to settle this case and described the settlement terms. Petitioner alleges that as a result of Kristen Hope Zimmerman’s January 2, 2009 human papillomavirus vaccine, she suffered from physical and neurological symptoms stemming from a significant aggravation of an underlying condition, including a somatoform disorder. Petitioner further alleges that Kristen Hope Zimmerman experienced the residual effects of her injuries for more than six months. Respondent denies that Because this unpublished decision contains a reasoned explanation for the special master's action in this case, the special master intends to post this unpublished decision on the United States Court of Federal Claims's website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the public unless they contain trade secrets or commercial or financial information that is privileged and confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to delete such information prior to the document=s disclosure. If the special master, upon review, agrees that the identified material fits within the banned categories listed above, the special master shall delete such material from public access. human papillomavirus vaccine caused or significantly aggravated any of the alleged injuries suffered by Kristen Hope Zimmerman. Nonetheless, the parties agreed to resolve this matter informally.

The court hereby adopts the parties’ said stipulation, attached hereto, and awards compensation in the amount and on the terms set forth therein. Pursuant to the stipulation, the Court awards petitioner a lump sum of $7,500.00, representing compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). The award shall be in the form of a check for $7,500.00 made payable to petitioner.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.2

IT IS SO ORDERED.

Dated: March 20, 2013 /s/ Laura D. Millman Laura D. Millman Special Master

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party=s filing a notice renouncing the right to seek review.

11"'1" TlIE ill'~ITl'ZD STATES COURT OF FEDEP~ CLAil\1S OFFICE OF SPECIAL MASTERS ) KRISTEN HOPE ZIMMERMAN, by her ) motherJENNIFERD. QUINN, ) ) Petitioner, ) No. I l-859V ECF v. ) Special Master Mill~nan ) ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ) STIPULATION The prutics hereby stipulate to the following matters: I. Petitioner, on behalf ofher daughter, Kristen Hope Zimmerman ("Hope"), filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-JO to 34 (the "Vaccine Program"). The petition, as amended, seeks compensation for injudes allegedly related to the receipt of the human papillomavirus ("HPV") vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a).

2. Hope received the HPV vaccine on January 2, 2009.

3. The vaccine was administered within the United States.

4. Petitioner alleges that, as a result of receiving the vaccine, Hope suffered from physical and neurological symptoms stemming from a significant aggravation of an underlying condition, including a somatoforrn disorder, persisting longer than six months.

5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on behalf of Hope as a result of an alleged vaccine-related injmy.

6. Respondent denies that the vaccine caused or significantly aggravated any of the alleged injuries suffered by Hope or any other injuries.

7. Maintaining 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 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-2l(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump Sllll1 of $7,500.00, in the form of a check payable to petitioner, on behalf of Hope, representing compensation for all damages that would be available under U.S.C. § 300aa-15(a).

9. 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 pmsuant to U.S.C. § 300aa-21(a)(l), and an application, the parties will submit to further proceedings before the special master to awi:ll'd reasonable attorneys' foes and costs incurred in proceeding upon this petition.

10. Petitioner and her attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-l 5(g), to 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 health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C.

§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.

11. Payment made pursuant to paragraph 8 of this Stipulation, and any amom1t awarded pursuant to paragraph 9 of this Stipulation, will be made in accordance with 42 U.S.C. § 300aa-l 5(i), subject to the availability of sufficient statutory funds.

12. The patties and their attorneys further agree and stipulate that, except for any award for attorneys' fees and litigation costs, the money provided pursuant to this Stipulation will be used solely for the benefit of Hope, as contemplated by a strict construction of 42 U.S.C, § 300aa- I 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa.. l 5(g) and (h).

13. Petitioner represents that she presently is, or within 90 days of the date of judgment will become, duly authorized to serve as giiardian of Hope's estate under the laws of the State of Indiana.

14. In return for the payment described in pamgraph 8, and any payments that may be made as described in paragraph 9, petitioner, in her individual capacity, and on behalf of Hope, and her heirs, executors, administrators, successors or assigns, does forever ilTevocably and unconditionally release, acquit and dischm·ge the United States and the Secretary of Health mid Human Services from any and all actions, causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demm1ds of whatever kind or nature) that have been brought, could have been brought, or could he timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l 0 et seq., on accow1t of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal h,juries to or death of Hope resulting from, or alleged to have resulted from, tl1e HPV vaccine administered on January 2, 2009, as alleged by petitioner in a petition for vaccine compensation filed on or about December 8, 2011, as amended on December 4, 2012, in the United States Court of Federal Claims as petition No. 1 l-859V.

15. If Hope 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 patties.

16. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Comt of Federal Claims fails to enter judgment in conformily with a decision that is in complete conformity with the tenns of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party.

l 7. This Stipulation expresses a full and complete negotiated settlement ofliability and damages claimed nnder the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise uoted in paragraph 9 above. There is absolutely no agreement on the part of the paiiies 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 aiul/or amount of damages, and fmther, that a change in the nature of the irrjury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement.

18. 'll1is Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the HPV vaccine caused Hope to suffer from her alleged injmies or any other injury, or sigaificantly aggravated any underlying condition.

19. All rights and obligations ofpetitionel' hereunder shall apply equally to petitioner's heirs, executors, administratol's, successors, and/or assigns, as legal representatives of Hope.

END OF STIPULATION

Respectfolly submitted, PE'l'!TlONER:

AUTHORIZIW REPRESENTATIVE OF THE ATTORNgV GENERAL:

flJJ, ~ l/hJ~ ·~,~- ~1tr:f.i?'~~MCLAREN --·---- Hinck McLaren Jones Ryland & Gritlec Deputy Director Ouk Coon Drive, Suiro 360 Torts Bnrnch Mclllphis, TN 38117 Civil Division (90 I) 762-0535 U.S. Dcpnrtrnent of Juscice P.O. !lox 146 Bcujtunin FnuikHn S1.atio11 Washington, DC 200,M-O 146 AIJ'rfl(}R.IZED REPRESENTATIVE ArroRNE.Y OF RECORD FOR OF'n!ESECRETARYOFHEALTH R!lSl'ONDl•:NT: AND HUM ' SE!f\'lf-ES:

._h . ,(j;~---·~0:1 \i1T C. SERTA. ~l.D., ~i:i;:i='i.- ~---r7~~~/ ~-,.~~ DARRYL1L w1srrl\ru) ___ 1\cting Directort IJivision of Vnccinc Trlal _Anon1cy Injury Compensation (DVIC) Torts Branch Director, Countermeasures Injury Civil Division Compensation i'rogrnm (C!CP) U.S. Depm:lmenc ol' Justice Healthc~re Systems Bureau P.O. Box 146 U.S. Department of Health Benju1nin Franklin Stntion Hnd l~Juman Services Washington, De 200<l4-0146 5600 f'ishei·s Lane (202) 616·43 57 Parldawn Building, Mail Stop I IC-26 Rockville, MD 20857

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