Wealand v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************* CHARLES WEALAND, * * No. 12-644V Petitioner, * Special Master Christian J. Moran * v. * Filed: April 10, 2014 * SECRETARY OF HEALTH * Stipulation; Influenza (“flu") Vaccine; AND HUMAN SERVICES, * Guillain-Barré Syndrome (“GBS”). * Respondent. * ********************* Elaine Whitfield Sharp, Whitfield, Sharp & Sharp, Marblehead, MA, for Petitioner Tara J. Kilfoyle, United States Department of Justice, Washington, D.C., for Respondent.

UNPUBLISHED DECISION1 On April 9, 2014, the parties filed a joint stipulation concerning the petition for compensation filed by Chales Wealand on September 27, 2012. In his 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 he received on or about September 17, 2010, caused him to suffer Guillain-Barré Syndrome (“GBS”).

Petitioner further alleges that he 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 his behalf as a result of his condition.

Respondent denies that the influenza vaccine caused petitioner to suffer petitioner’s alleged GBS and/or any other injury.

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 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 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.

Damages awarded in that stipulation include: A lump sum of $225,000.00 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. § 300an-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 12-644V according to this decision and the attached stipulation.2 Any questions may be directed to my law clerk, Marc Langston, at (202) 357-6392.

IT IS SO ORDERED.

s/Christian J. Moran Christian J. Moran Special Master

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.

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) CHARLES W. WEALAND, ) ) Petitioner, ) ) No. 12-644V v. ) Special Mnster Christ inn J. Moran ) ECF ) SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ~~~~~~~~~~~~~> STlPULATION The parties hereby stipulnte to the fo llowing matters: I. Petitioner filed a petition for vnccine compens11tion under the National Vaccine Injury Compensation Program, 42 U.S.C. § 3001111-IO to 34 (the "Vnccine Program"). The petition seeks compensation for injuries alleged ly related to petitioner's receipt of the trivalent influenza ("flu") vaccine, which vaccine is contained in the Vnccine Injmy Tnble (the "Table"), 42 C.F.R. § 100.3(11).

2. Petitioner received his flu vaccinntion on or nbout September 17, 2010.

3. The vaccine w11s administered within the United States.

4. Petitioner alleges that the flu vaccine caused him to develop Guillain-Bnrre Syndrome ("OBS") 11nd thnt he experienced the resid ual effects of this injury for more than six months.

5. Petitioner represents tlmt t!1 hos been no prior 11wnrd or settlement of a civil action ere for damages ns 11 result of his condition.

6. Respondent denies that the flu immunization is the cause of pelitioner's alleged GBS, and/or nny other injury.

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7. Maintaining their above-stated positions, the parties nevet1heless now ngree that the issues between them shall be settled and that 11 decision should be entered awarding !he compensation described in parngrnph 8 of this Stipulation.

8. As soon 11s 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. § 300an-21 (a)(I), the Secretary of Health and Human Services wi ll issue the fo llowing vaccine compensation payment: A lump sum of$225,000.00 in the form of a check payable to petitioner. This amount represents compensntion for all damages that would be available under 42 U.S.C. § 300an-15(a).

9. As soon as practicRblc after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensntion pursuant to 42 U.S.C. § 300aa-'2 l(a)(I), 1 en application, the parties will submit to further proceedings before md the special master to Rward reasonnb le nttorney's fees and costs i11Clmed in prncceding upon this petition.

I 0. Petitioner and his attorney represent tlrnt they have identified to respondent all known sources of payment for items or sel'vices for which the Program is not primarily liRble under 42 U.S.C. § 300aa-I 5(g), including State compensation programs, insurance policies, Fed..:ral or State health benefirn programs (other thim Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities th11t provide health services on 11 pre-paid bnsis.

11 . Payments made pursuant to paragraph 8 of this Stipulation, and any amount awarded pursuant to paragrnph 9, will be mnclc in accordance with 42 U.S.C. § 300aa-15(i), subject to the availnbility of sufficient statutory funds.

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12. The parties and their altorneys furlhel' agree and stipuhitc that, except fol' any award for attorneys' fees and litigation costs, and past unreimbursable expenses, the money provided pursuant to this Stipu lation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300an-15(a) llnd (d), and subject to the conditions of 42 U.S.C. § 300aa- J5(g) and (h).

13. In return for the payment described in paragrnph 8, and any amount awarded pursuant to paragraph 9, petitioner, in his individunl cnpacity and on bclrnlf of his heirs, executors, administrators, successors and/or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health mid Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all dcmnnds of whatever kind or nature) that hnve been brought, could hove been brought, or could be timely brought in the Court of Fe<leml Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa- l 0 et seq., on nccount of, or in any wny growing out of, any nnd all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the flu vaccination administered on September 17, 20 I0, as alleged by petitioner in a petition for vaccine compensation filed on or about September 27, 201 2, in the United States Court of Federal Clnims ns pctitio11 No. l 2-644V.

14. If petitioner should die pl'ior lo entry of j udgment, !his ngreement shall be voidable upon proper notice to the Courl on behalf of either or both of the parties.

15. If the special master fails to issue n decision in complete confo11nity with the terms of this Stipulation or if the Courl ofFedcrnf Claims foils 10 enter j udgment in conformity with n

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decision that is in complete conformity with the terms of this Stipulation, then the parties' settlement nnd this Stipulation shall be voidable at the sole discretion of either pa1 ty.

16. This Stipulation expresses a full nnd complete negotinted settlement of liability end dnmages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in pnragraph 9 above. There is absolutely no ngreemcnt on the part of the parties hereto to m11ke any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties fu1thcr agree and understand that the award described in this Stipulation may reflect a compromise of the p11rties' 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 Stntes or the Secretary of Health anci Humai1 Services that the flu vaccine caused petitioner's alleged GBS 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 I I I I I I I I I I I I I I Case 1:12-vv-00644-UNJ Document 58 Filed 04/09/14 Page 5 of 5

Respectfully submined, PETITIONER:

c~~ ATTORNEYOFRECORDFOR AUTHORIZED REPRESENTATIVE PETITl~NER: OF THE ATTORNEY GENERAL:

ELArNE WHITFIBLD SHA VINCENT J.M Whitfield Sharp & Sharp Deputy Director Atlantic Avenue Torts Branch Marblehead, MA 01945 Civil Division Tel: (781) 639·1862 U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEYOFRECORDFOR OF THE SECRET Y OF HEALTH RESPONDENT: AND HU S ES:

~~~ lTARA'J. ~ CA ER A, M.D., M.P.H.

Acting Director, Division of Trial Attorney VRccine Injury Compensation (DVIC), Torts Branch Director, Countenneasures Injury CivU Division Compensation Program, U.S. Department of Justice Healthcare Systems Bureau P.O. Box 146 U.S. Department ofHenlth Benj111nln Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane (202) 514-9729 Parklawn Building, Mail Stop 1IC-26 Rockville, MD 20857

Dated: lf/ 'l /[ '-/