McCarter v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 13-887V (Not to be published) ***************************** * HARRY MCCARTER, as * Filed: September 24, 2014 Administrator and Legal Representative * of the Estate of LILLIE MAE MCCARTER, * Decision by Stipulation; Damages; * Influenza (“Flu”) Vaccine; Petitioner, * Acute Disseminated * Encephalomyelitis (“ADEM”) v. * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * * ***************************** Elizabeth Muldowney, Rawls, McNelis and Mitchell, P.C., Richmond, VA, for Petitioner.

Lynn Elizabeth Ricciardella, U.S. Dep’t of Justice, Washington, D.C., for Respondent.

DECISION AWARDING DAMAGES1 On November 8, 2013, Harry McCarter, as administrator and legal representative of the estate of Lillie Mae McCarter, filed a petition seeking compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that as a result of receiving the influenza (“flu”) vaccine on or about September 22, 2011, his mother, Ms. McCarter, suffered Acute Disseminated Encephalomyelitis (“ADEM”). Stipulation at 1 (ECF Docket No. 9). Furthermore, Because this ruling contains a reasoned explanation for my action in this case, it will be posted on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To do so, Vaccine Rule 18(b) provides that each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the ruling will be available to the public.

Id. The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended, 42 U.S.C.A. ' 300aa-10 – 34 (2006)) [hereinafter “Vaccine Act” or “the Act”]. Individual sections references hereafter will be to ' 300aa of the Act.

Petitioner alleges that Ms. McCarter’s death (which occurred on November 13, 2011) was part of the sequela of her vaccine-related injury. Id. Respondent denies that Ms. McCarter’s alleged ADEM, any other injuries, or her death were caused by the flu vaccine. Id. at 2. Nonetheless both parties, while maintaining their above- stated positions, agreed in a stipulation filed September 17, 2014, that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation. Id. I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The stipulation awards:  A lump sum of $250,000.00 in the form of a check payable to Petitioner as administrator and legal representative of the Estate of Lillie Mae McCarter. The amount represents compensation for all damages that would be available under U.S.C. § 300aa-15(a).

Stipulation ¶ 8.

The stipulation also conditions the timing of payment of the award as follows: No payment pursuant to this Stipulation shall be made until petitioner provides the Secretary with documentation establishing his appointment as legal representative of the Estate of Lillie Mae McCarter. If petitioner is not authorized by court of competent jurisdiction to serve as legal representative of the Estate of Lillie Mae McCarter at the time a payment pursuant to this stipulation is made, any such payment shall be paid to the party or parties appointed by a court of competent jurisdiction to serve as legal representative of the Estate of Lillie Mae McCarter upon submission of written documentation of such appointment to the Secretary.

Stipulation ¶ 12.

I approve a Vaccine Program award in the requested amounts set forth above to be made to Petitioner (with payment of the award subject to Petitioner’s prior performance of the terms of ¶ 12 in the stipulation). 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.3

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review.

IT IS SO ORDERED.

/s/ Brian H. Corcoran Brian H. Corcoran Special Master