Fischer v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 11-202V Filed: May 4, 2015 * * * * * * * * * * * * * * * * UNPUBLISHED SHAUNI RAI FISCHER, legal * Representative of a minor child, KJF, * * Special Master Dorsey Petitioner, * * v. * Joint Stipulation on Damages; * Hepatitis B (Hep B), Diphtheria- SECRETARY OF HEALTH * Tetanus- Acellular Pertussis (DTaP); AND HUMAN SERVICES, * Haemophilus Influenzae Type B * (Hib); Pneumococcal Conjugate; Respondent. * Inactivated Polio Vaccines; Infantile * Spasms. * * * * * * * * * * * * * * * * Michael Adly Baseluos, San Antonio, TX, for petitioner.

Darryl R. Wishard, United States Department of Justice, Washington, DC, for respondent.

DECISION1 On April 1, 2011, Shauni Rai Fischer2 (“petitioner”) filed a petition on behalf of her daughter, KJF, pursuant to the National Vaccine Injury Compensation Program.3 42 U.S.C. §§ 300aa-1 to -34 (2006). Petitioner alleged that, as a result of receiving the hepatitis B (“Hep B”), diphtheria-tetanus-acellular pertussis (“DTaP”), haemophilus influenza type b (“Hib”), 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).

On April 16, 2015, petitioner filed a motion to amend the caption of the case to reflect her name change.

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. pneumococcal conjugate (“PCV”) and inactivated polio (“IPV”) vaccinations on April 26, 2010, KJF suffered from infantile spasms and related sequelae. Petitioner further alleged that KJF suffered the residual effects or complications of this vaccine injury for more than six months.

On May 4, 2015, the parties filed a stipulation, stating that a decision should be entered awarding compensation.

Respondent denies that the vaccines caused or significantly aggravated KJF’s alleged medical condition, any of her ongoing symptoms, 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. A lump sum of $650,000.00, in the form of a check payable to the guardian of KJF’s estate; b. A lump sum of $66,021.83, which amount represents compensation for reimbursement of a Texas Medicaid lien, in the form of a check, payable jointly to petitioner and TMHP/Medicaid, Attn: Torts Receivables, P.O. Box 292948, Austin, TX 78720-2948 (petitioner agrees to endorse this payment to THMP); and c. A lump sum of $62,117.00, which amount represents compensation for reimbursement of a Medicaid lien, in the form of a check payable jointly to petitioner and the Wisconsin Department of Health Services, 5615 High Point Dr., Suite 100, Irving, TX, 75038-9984 (petitioner agrees to endorse this payment to Wisconsin Department of Health Services).

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.4 IT IS SO ORDERED.

s/ Nora Beth Dorsey Nora Beth Dorsey 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.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) SHAU I RAI FISCHER. legal ) representati ve of a minor child. KJF. ) ) Petiti oner. ) No. 1 l-202V ECP v. ) pecial Master Dorsey ) ) SECRETARY OF HEALTH ) A D HUMAN SERVICES . ) ) Respondent. ) ~~~~~~~~~~~~~~~ ) STIPULATION The parties hereby stipulate to the fo llowin g matters: 1. Petitioner, Shauni Rai f-i sc her. fi led a petition for vaccine compensation on behalf' of her daughter, KJF. under the ational Vaccine Injury Compensation Program. 42 U.S.C. §300aa- l 0 to 34 (the "Vaccine Program"). The petition seeks compensation for inj uries allegedly related to KJ F. s rece ipt of hepatiti s B. diphtheria-tetanus-ace!1ular pertussis. haemophilus influenzae Type b. pneumococcal conjugate. and inac ti vated polio vacc ines (hereinafter .. vaccines··). all of which are contained in the Vacc ine Injury Table (the "Table"). 42 C. F.R. § I 00.3(a).

2. K.IF received the vaccines on April 26. 20 10.

3. The vacc ines were ad mini stered within the United States.

4. Petitioner alleges that. as a result of receiving the vaccines. K.IF suffered from infantile spasms and related seque lae. and that K.IF experienced the res idual effects of thi s injury for more than six months.

5. Petitioner represents that there has been no prior award or settlement of a civi l acti on fo r damages as a resul t of the all eged inj ury.

6. Respondent denies that the vaccines caused or significantly aggravated KJ F·s alleged medical condition. any of her ongo ing symptoms. or any other injury.

7. Maintaining their above-stated positions. the parti es nevertheless now agree that the issues between them shall be settled and that a dec ision should be entered awarding the com pensati on described in paragraph 8 or this tipulati on.

8. As soon as practicable alier an entry of j udgment refl ecting a decision consistent with the terms o f this Stipulation. and a lier peti tioner has fil ed an election to rece ive compensati on pursuant to 42 U.S.C. § 300aa-21(a)( 1). the Secretary of Hea lth and Human Services will issue the foll owing vacc ine compensati on payments: a. A lump sum of $650.000.00, in the form of a check. payable to the guardian of KJ F's estate: b. A lum p sum of $66.02 1.83 . which amount represents compensation for reimbursement of a Texas Medicaid lien. in the fo rm of a check. payab le joint ly to petitioner and TM HP/Med icaid. Attn: Torts Receivables. P.O. Box 292948.

Austin. TX 78720-2948 (petitioner agrees to endorse thi s payment to Tl-I MP): and c. A lump sum or $62. 117.00. which amount represents compensation lo r reimbursement of a Medicaid lien. in the fo rm of a check. payable jointl y to petitioner and Wisconsin Department of Hea lth Services, 56 15 l li gh Point Dr. .

Suite 100, Irving. TX 75038-9984 (petiti oner agree to endorse thi s payment to Wi sconsin Department o f Health Services).

The above amounts represent compensation fo r all damages that would be avail able under 42 U.S.C. § 300aa-1 5(a).

9. As soon as practicable after the entry ofj udgment on entitlement in thi s ca e, and after petitioi;ier has fil ed both a proper and ti mely electi on to rece ive compensation pursuant to

42 U.S.C. § 300aa-2 I (a)( I), and an application. the parties will submit to further proceedings before the special master to award reasonable attorneys· fees and costs incurred in proceeding upon thi s petiti on.

I 0. Petitioner and her attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for whi ch the Program is not primarily li able under 42 U.S.C. § 300aa-l 5(g). to the extent that payment has been made or can reasonabl y be expected to be made under any late compensati on programs. insurance policies. Federal or State health benefits programs (other than Title X IX of the Social Security Act (42 U.S.C. § 1396 et seq.)). or by entities that prov ide health services on a pre-paid basis.

11 . Payments made pursuant to paragraph 8 of this Stipul ation. and any amount awarded pursuant to paragraph 9 or thi s Stipul ation. will be made in accordance with 42 U.S.C. § 300aa-l 5(i), subj ect to the availability of sufficient statutory fund s.

12. The parti es and their attorneys further agree and stipulate that. except fo r any award fo r attorneys· fees and liti gati on costs, the money provided pursuant to this Stipulati on will be used so lely fo r the benefit of K.J F, as contemp lated by a strict constructi on or 42 U.S.C. § 300aa-l 5(a) and (d). and subject to the conditions of 42 U.S.C. § 300aa-l 5(g) and (h).

13. Petitioner represents that she presentl y is. or within 90 days of the date of judgment will become, duly authorized to serve as guardi an of K.JF "s estate under the laws of the State of Texas. No payments pursuant to thi s ti pulati on shall be made until petitioner provides the Secretary with documentation establ ishing her appointment as guardi an of K.IF 's estate. If petitioner is not authorized by a court of competent jurisdi ction to serve as guardian o r the estate of K.IF at the time a payment pursuant to thi s Sti pulation is to be made. any such payment shall be paid to the party or parti es appointed by a court of competent jurisdiction to serve as guardian of the estate of KJ F upon ubrni ssion of written documentation of such appointment to the Secretary.

14. In return for the payments described in paragraphs 8 and 9. petitioner. in her indi vidual capacity, as legal representati ve or K.JF. and on behalf o r herse lf. KJF. and her heirs, executors, admini strators, successors or assigns. does forever irrevocabl y and unconditionally release, acqu it and di scharge the United States and the Secretary of Health and Human Services from any and all actions. causes of action (includi ng agreements. judgments. claims. damages. loss of services, expenses and all demands or whatever kind or nature) that have been brought. could have been brought. or could be timely brought in the Court or Federal Claims. under the Nati onal Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-I 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 KJF resulting from, or alleged to have resulted from . the vacc ines admini stered on Apri l 26. 20 I 0. as alleged by petiti oner in a petition fo r vaccine compensation filed on or about Apri l I, 20 11. in the United States Court of Federal Claims as petition o.

1 l-202V.

15. If KJF should die prior to entry orj udgment. thi s agreement shall be vo idable upon proper notice to the Court on behalf of either or both of the parties.

16. If the special master fail s to issue a dec ision in complete conformity with the term s o f this Stipulati on or if the Court of Federal Claims fa ils to enter judgment in confo rmity with a decision that is in complete conform ity with the terms of thi s Stipulation. then the parties· settlement and thi s Stipulation shall be voidable at the so le discretion of either party.

I 7. Thi s Stipulation expresses a full and complete negotiated settlement of liabi lity and damages claimed under the Nati onal Childhood Vaccine Injury Act of 1986. as amended. except as otherwise noted in paragraph 9 above. There i absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearl y agreed to. The parties further agree and understand that the award descri bed in this stipulation may refl ect a compromise or the part ies· respective positi ons as to liabil ity and/or amount o f damages, and furt her, that a change in the nature of the injury or co nditi on or in the items of com pensation sought, is not ground s to modify or revise this agreement.

18. Thi s Stipulation shall not be con trued as an adm ission by the United tales or the Secretary of Health and Human Services that the vacc ines either caused or sign ifi cantly aggravated KJ F's alleged medical cond iti on or any other injury.

19. All rights and obligations of petitioner hereunder sha ll apply equall y to petitioner's heirs, executors. admi nistrators, successors. and/or assigns.

END OF STI PULATION

Rcsrl.'ctfully suhmittcd.

PKl'ITIO\"F:R:

~~,.:lo_ ~ll·\liNI RJ\l ~\"­ 'f\St..~lc:. ::> y.-."'\ A ITORNEY OF RECORD FOR. AlJ'l IJORJl,ED Rl<:PRl':S.FNTATIYF: PETITJO'\'ER; OF THI:: ATTORl\IEY GE'.\ERAL:

- ~~ i\il( I IAU B.L\ l\EU'Ot.; Basdtt\JS I a\.\ l''.n11 Deputy Direct<• 10' I·. Park /\ve. forts Hranch "lan Antonio, rx 78212 ( hil Division t210) 787 599) l' :-,. Dcp:u1rnc11l of Just1tc P.0. Box I ·t6 Bcn.1a01in J'ranklin ~tation \Vashington, DC 20044-0 J 4(1 AUTHORIZED REPnESEJVI ATIVE ATTOR'\EY OF RF.CORI> FOR OF 'I llf SECRETARY OF HEALTH RESPO:'<iI>E:\T: A;"\D Hll:\TA~ SE CFS;

Dircchir. Di" ision of Injury Scnim f'rial J\ttorrn:~ Compcns:1ti1rn Prngram!:> (DICP) ·1 urts Hrnnd1 I kalth1;arc Systems l3ureau Civil Division U.'i. Ucrartmcnt of Health and i .S. Dcpart1m.:11t or .Justice I Juman Services P.O. Box 146 5600 Fishers Lane I3cnjamin Franklin Stati,)n Parklawn lluilding, Mail Stop 11 C-2<) \V 11shington. DC· 200-M -0146 Rt'C~Ville, \tlD 208.57 (202.) 616-4.:157

S- lhtcd: _k_(_J _1~-