Lauren Wholley v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 11-300V Filed: May 1, 2013

************************************* LAUREN WHOLLEY, * UNPUBLISHED

* Special Master Dorsey Petitioner, *

* Joint Stipulation on Damages; v. * Human papillomavirus (“HPV”)

* Vaccine; Neurological injuries SECRETARY OF HEALTH * AND HUMAN SERVICES, *

*

Respondent. *

************************************* Ronald C. Homer, Conway, Homer, & Chin-Caplan, P.C., Boston, MA, for petitioner. Darryl R. Wishard, United States Department of Justice, Washington, DC, for respondent.

DECISION1

On May 13, 2011, Lauren Wholley (petitioner), filed a petition pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006). Petitioner filed an amended petition (“Am. Pet.”) on October 3, 2011. Petitioner alleged that a human papillomavirus (“HPV”) vaccine she received on May 28, 2008, caused her to suffer neurological injuries. Am. Pet. at ¶ 1. Petitioner also alleged that she experienced the residual effects of her injuries for more than six months. Id. at ¶ 38.

On May 1, 2013, the parties filed a stipulation, stating that a decision should be entered awarding compensation.

Respondent denies that the HPV vaccine caused petitioner’s neurological injuries or any other injury. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

The parties stipulated that petitioner shall receive the following compensation: A lump sum of $25,000.00, in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. §300aa-15(a).

Stipulation ¶ 8.

The undersigned approves the requested amount for petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3

IT IS SO ORDERED. s/ Nora Beth Dorsey Nora Beth Dorsey Special Master

IN THE UNITED STATES COURT OF FEDERAL CLATh1S OFFICE OF SPECIAL MASTERS

) LAUREN WHOLLEY, )

) Petitioner, )

V. ) No. I I-300V ECF

) Special Master Dorsey SECRETARY OF HEALTH AND HUMAN ) SERVICES, )

) Respondent. )

~~~~~~~~~~~~~~~~~ )

STIPULATION

The parties hereby stipulate to the following matters:

I. Petitioner, Lauren Wholley, filed a petition for vaccine compensation nuder 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 petitioner's receipt of the human papillomavirus ("HPV") vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § !00.3(a).

2. Petitioner received the HPV vaccine on May 28, 2008.

3. The vaccine was administered within the United States.

4. Petitioner alleges that, as a result of receiving the HPV vaccine, she suffered from neurological injuries, and that she experienced the residual effects of these injuries for more than six months.

5. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of these injuries.

6. Respondent denies that the HPV vaccine either caused or significantly aggravated petitioner's alleged medical condition, any of her ongoing symptoms, or any other injury.

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-2 J (a)(l ), the Secretary of Health and Human Services will issue the following vaccine compensation payment:

A lump sum of $25,000.00, in the form of a check payable to petitioner. This above amount represents compensation for all damages that would be available under 42 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 pursuant to 42 U.S.C. § 300aa-21(a)(l), and an application, the paiiies will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. l 0. 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-15(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 amount awarded pursuant to paragraph 9 of this Stipulation, will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds.

12. The parties 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 petitioner, 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-l 5(g) and (h).

13. In return for the payments described in paragraphs 8 and 9, 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, 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. § 300aa-l 0 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 HPV vaccine administered on May 28, 2008, as alleged by petitioner in a petition for vaccine compensation filed on or about May 13, 2011, in the United States Court of Federal Claims as petition No. I l-300V.

14. 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.

15. 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 Gonformity 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.

16. This Stipulation expresses a full and complete negotiated settlement ofliability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the paities 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 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.

17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the HPV vaccine either caused or significantly aggravated petitioner's alleged medical condition or any other injury.

18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

Respectfully submitted,

,, PETITIONER: cfO..U)uun_uf~() J-1/

\\/HOLLEY~ ~ LAUREN ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GE:"ER.\L:

Conway, Homer & Chin-Caplan, P.C. Deputy Director 16 Shawmut Street Torts Branch j:

Boston, MA 02116 Civil Division (617) 695-1990 U.S. Department of Justice

P.O. Box 146 .

Benjamin Franklin siation · Washington, DC 2.00~4-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF R.!!:CORD FOR OF THE SECRETARY OF HEALTH RESPONDE:\TT:

AND HUMAN SERVICES:

VITO CASERTA, M.D., M.P.H.

~~

DARRYL R. WlSHl'?-RD Acting Director, Dlvision of Vaccine Trial Attorney

Injury Compensation (DVlC) Torts Branch Director, Countermeasures [njury Civil Division !!

Compemation Program (C!CP) U.S. Department ofJustice Healthcare Systems Bureau P.O. Box l46 ::

U.S. Department of Health Benjamin FrankHn Sfation and Human Services Washington, DC 20Q44-0146

5600 Fishers Lane (202) 616-4357 ' Park lawn Building, Mail Stop 11 C-26 Rockville, MD 20&57 Dated: EJ'-'-1~/>~- ii ,, ,.