Butland v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 07-111V Filed: March 6, 2015 * * * * * * * * * * * * * * * * UNPUBLISHED KELLY BUTLAND, as the Legal * Representative of Her Minor Daughter, L.B., * * Special Master Hamilton-Fieldman Petitioner, * * Joint Stipulation on Damages; v. * Measles-Mumps-Rubella (“MMR”) * Vaccine; Opsoclonus Myoclonus SECRETARY OF HEALTH * Syndrome (“OMS”).

AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * Curtis Webb, Webb, Webb, & Guerry, Twin Falls, Idaho, for Petitioner.

Traci Patton, United States Department of Justice, Washington, D.C., for Respondent.

DECISION 1 On February 16, 2007, Kelly Butland (“Petitioner”) filed a petition on behalf of her minor daughter, L.B., pursuant to the National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa-1 to -34 (2006). Petitioner alleged that, as a result of the administration of measles- mumps rubella (“MMR”) and Varicella vaccines on December 22, 2004, L.B. suffered from Opsoclonus Myoclonus syndrome (“OMS”). On June 19, 2009, the previously-assigned special master ruled that Petitioner is entitled to compensation.

Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling 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 Vaccine Rule 18(b), 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).

The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.

On March 4, 2015, the parties filed a stipulation regarding the amount of damages to be awarded to Petitioner. Respondent continues to maintain her contrary position, but will not seek review of the undersigned’s determination of entitlement upon its memorialization as a reviewable decision. The parties thus 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 stipulate that Petitioner shall receive the following compensation: A lump sum of $437,534.71, which amount represents compensation for lost future earnings and pain and suffering ($425,000.00) and first year life care expenses ($12,534.71), in the form of a check payable to Petitioner as guardian/conservator of the estate of L.B. for the benefit of L.B. No payment shall be made until Petitioner provides Respondent with documentation establishing that she has been appointed as the guardian/conservator of L.B.’s estate; A lump sum of $6,281.00, which amount represents compensation for past unreimbursable expenses, in the form of a check payable to Petitioner, Kelly Butland; A lump sum of $13,034.00, which amount represents reimbursement of a lien for services provided to L.B., in the form of a check payable jointly to Petitioner and Holloway Credit Solutions, LLC P.O. Box 230609 Montgomery, AL 36123-5609 Attn: Ms. Lang Petitioner agrees to endorse the check to Holloway Credit Solutions, LLC.

A lump sum of $6,210.00, which amount represents reimbursement of a lien for services provided to L.B., in the form of a check payable jointly to Petitioner and Children’s Hospital P.O. Box 2252 Birmingham, AL 35246-0095 Medical Reference No. 1237366 Petitioner agrees to endorse the check to Children’s Hospital.

An amount sufficient to purchase the annuity contract described in paragraph 10 of the Stipulation, paid to the life insurance company from which the annuity will be purchased.

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/ Lisa Hamilton-Fieldman Lisa Hamilton-Fieldman Special Master

Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review.

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