Parker-Winter v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************** * JOANNA PARKER-WINTER * as mother and natural guardian of * No. 13-150V AIDAN SCHEUNEMANN, * Special Master Christian J. Moran * Petitioner, * * Filed: January 23, 2014 v. * * SECRETARY OF HEALTH * Stipulation; multiple vaccines; AND HUMAN SERVICES, * eczema; atopic dermatitis; * developmental and social delay.

Respondent. * ********************** * Jeffrey S. Pop, Beverly Hills, CA, for Petitioner; Michael P. Milmoe, U.S. Department of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION1 On January 16, 2014, respondent filed a joint stipulation concerning the petition for compensation filed by Joanna Parker-Winter on behalf of her son, Aidan Scheunemann, on February 28, 2013. In her petition, Ms. Parker-Winter alleged that the multiple vaccines which Aidan received between the ages of two to eighteen months, including Pentacel (DTaP-IPV, Hib), Prevnar (Pneumococcal Conjugate), RotoTeq (Rotavirus), Hepatitis A, Hepatitis B, Mumps-Measles-Rubella, and Varicella, which are contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), caused him to suffer eczema and/or atopic dermatitis and developmental and social delay. 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 Aidan’s behalf as a result of his condition.

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.

Respondent denies that any of the vaccines Aidan received caused his eczema, atopic dermatitis, developmental and social delay, or any other injury, and further denies that Aidan's current disabilities are sequelae of a vaccine-related injury.

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 $15,000.00 in the form of a check payable to petitioner, Joanna Parker-Winter, as guardian/conservator of Aidan’s estate representing all damages 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 13-150V according to this decision and the attached stipulation.2 Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-6353.

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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JN THE UNITED STATES COURT OP FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS JOANNA PARKER· WINTER, as ) Mother and Natnral Guardian of ) AIDEN SCHEUNEMANN, ) ) Petitioner, ) No. 13·l50V ) Special Master . v. ) Clll'lstian 1. Moran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. )

STIPULATION The parties hereby stipulate to the following matters; I. On behalf of her son, Alden Scheunemann (''Aiden"), 1>etitioner, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-IO to 34 (the "Vaccine Program"). The petition seeks compensation for injuries nllegedly related lo Alden's receipt of multiple vaccines that he received while he was between the nges of two to eighteen months, including Pentacel (DTaP-IPV, Hib), Prevnar(Pne11mococcnl Conjugare), RotoTeq (Rotavlrus), Hepatitis A, Hepatitis B, M111nps-Mcnsles-R11bella, nnd Yarieelln, which vaccines are contained in the Vaccine 11\lury Table {the "Table"), 42 C.F.R. § 100.3(11).

2. Aiden received the above vaccines on March 3, 20IO, May 4, 2010, July (i, 2010, October 5, 20 IO, Jam1ary 11, 2011, April 12, 2011, and June 22, 2011.

3. The vaccines were administered within the United States.

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4. Petitioner alleges that Alden suffered from eczema and/or atoplc dennatitls, as well as d!lvelopmental and soclal delay, all caused-In-fact by the vaccines he received. Petitioner further alleges lhnt Aiden suffered the residual effects of his Injuries for more tbnn six months.

S. Petitioner represents thatthere hos been no prior award or settlement ofa civil action for damages on Alden's behalf as a result of his condition.

6. Respondent denies that any oftlte vaccines Aiden received caused his eczema, atopic dennatilis, developmental and social delay, or any other injury, and fi1rlher denies that Alden's current disabilities are sequelae of a vacclne•related injury.

7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them slmll be settled and that a decision should be entered awarding the compensation described In paragrapll 8 of this Stipulation.

8. As soon os pmcticable atler an entry ofjudgment reflecting a decision consistent wilh the terms of this Slipulalion, and after petitioner has flied an election to receive compensation pursuantto 42 U.S.C. § 300aa-2J{a)(I), tile SecretaryofHealUt and Human Services will issue the followlng vaccine compensation pnymcnf: A lump su111 of$1S,OOO.OO In the form ofa check payable to petlt!o11er as guardian/conservator of Alden's estate representing all damages available under U.S.C. § 300an~IS(a).

9. As soon 'as practicable after the entry ofjudgment on entitlement in this case, and after petitioner hos filed both a proper and timely elecllon to receive compensHtion pursuant to 42 U.S.C. § 300na·2l(a)(I), and an application, the pa1·tles will submit to fm'lhcr proceedings before the special master to awai·d reasonable attorneys' fees and costs incurred In proceeding upon this petition.

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IO. Petllloner and her attorney represent that they have Identified to respondent all known sources of payment for items or services for which the Program is not primarily liable 1mder 42 U.S.C. § 300aa-15(g). lncludlng 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 entitles that provide health services on a prepaid basis.

11. Petitioner represents that she presently ls, or within 90 days ofjudgment wlll become, duly aiithol'ized to serve as g11ardlan/eonserv11tor of Alden's estate under thu laws of the State ofMielligan. No payment pursuant to this Stipulation shall be made until petitioner provides the Secretary with documentation establishing her appointment as guardian/conservator of Aiden's estate.

12. Payments made pursuant lo paragraph 81 and any amo11n1S awarded purs11a11t lo paragraph 9 of this Stipulatlon, wlll be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availabllity of sufficient smtutory funds.

13. 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 iielltloner as contemplated by a strict eonstmetion of 42 U.S.C. § 300aa-15(a) and (d). and subject to the conditions of 42 U.S.C. § 300aa-1S(g) and (h}.

14. In return for the payments described ln paragraphs 8 and 9, petitioner, in her Individual capacity, and as legal representative of Alden, on behalf of herself, Alden, his heirs, executors, administrators, successors, and assigns, docs forever irrevocably and unconditlonntly release, acquit nnd discharge the United States and the Secretary of Health and J:Iuman Services from any and all actions or \llluses of action (including agreements, judgments, claims, damages, loss ofservices, expenses and all demands ofwhatever kind or nature) that have been brought,

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could have been brought, or could be timely brought in the United States Court of Federal Clalins, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300an· IO et seq,, en acccunt ot; er in flllY way grcwlng oil! ct; any and all known or unknown, suspected or unsuspected personal irtj11rles to 01· death of Alden resulting from, or alleged to have resulted from the vaccines admhlislored to Alden on March 3, 2010, May 4, 2010, July 6, 2010, October S, 201-0, January 11, 2011, April 12, 201 l, and June22, 2011, as alleged by potllloner in a petition for vaccine compensallon flied on or about February 28, 2013, in the United Slates Court of Federal Claims as petition No. 13· l SOV.

1S. IfAiden should die prior to entry ofjudgment, this agreement shall be voidable upon proper n9tlce to lhe Court on behalf of eilher or bolh oftlte parties.

16. If the special master falls to Issue a decision Jn complete conformity with the terms ofthis Stipulation or if1be United States Court of Federal Claims falls to enter judgment in conformity with 11 deelslon thnt Is In complete conformity with the te1ms oftltis Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole dlserelion of either party.

17. Tb ls Stipulation expresses a full and complete negotiated settlement of liability and .damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in purngraph 9 above. Thero Is absolutely no agreement on the parl of tho parties liereto to make any payment or do any act or thing other than ls herein expressly stated and clearly agreed to. The parties further agree and understand that the award described In this Stipulailon may reflevt 11 compromise oflhe patlies' respective positions as to liability and/or amount ofdmnages, aud further, that a chonge In the.nature of the injury or condition 01· in the items of co111pensation sought, is no! grounds to modlfY or revise this agreement.

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18. 'This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services llrnt the vaccines Alden received between March 3, l 0 and June 22, 2011, caused Alden's eczema, atoplc dermatitis, developmental and socinl delay, or any other Injury, 01· that his eu1·rent disabilities nre sequelae ofhls alleged vaccine- related Injuries.

19. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, admlnislrelors, successors, and/or assigns as legal representative of Alden Scbeunemann.

BND OF STIPULATION

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Respectfully submitted, 'PETITIONER:

ORNE\' OF RECORD FOR AUTHORIZED REPRESENTATIVE ETITIONER: OF THE ATTORNEY GENERAL:

vlNCJiNTiMATANOSKT Deputy Director 9107 Wilshire Boulevard Torts Branch Suite700 Civil Division Beverly Hills, CA 90210 iJ. S. Department ofJustice (3 l 0) 274-7749 P. 0. Bo)( 146 Benjamin Franklin Station Washington, D.C. 20044-0146

AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR THE SECRETARY OF HEALTH AND RESPONDENT: HUMAN SERVICES:

A)~ /lµ;,!-if c -c VITO CASERTA, M.D., M.P.H, MICHAEL P. MILMOE Acting Director, Division of Vaccine Senior Trial Counsel fnjury Compensation (DVJC) To1·ts Branch Director, Countermeasures Injury Civil Division Compensatiou·Program (CICP) U. S. Department of Justice Healthcare Systems Bureau P. 0. BoK 146 U.S. Department of Health and Human Services Benjamin Franklin Station 5600 Fishers Lane Washington, DC 20044-0146 Parklawi1 Building, Stop 11 C-26 Tel: (202) 616-4125 Rockville, MD 20857 DATE: I/ /l' / 2 6 \ C\