Willard v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-897V (Not to be published) ***************************** * BUNTLY WILLARD and KRISTIN * WILLARD, Legal Representatives of a Minor * Child, N.W., * * Petitioners, * Filed: August 27, 2015 * v. * Decision by Stipulation; Damages; * Influenza (“Flu”) Vaccine; * Acute Disseminated SECRETARY OF HEALTH AND * Encephalomyelitis (“ADEM”) HUMAN SERVICES, * * Respondent. * * ***************************** Michael Adly Baseluos, San Antonio, TX, for Petitioners.

Gordon Elliot Shemin, U.S. Dep’t of Justice, Washington, DC, for Respondent DECISION AWARDING DAMAGES1 On September 23, 2014, Petitioners Buntly Willard and Kristin Willard, Legal Representatives of a Minor Child, N.W., filed a petition seeking compensation under the National Vaccine Injury Compensation Program.2 Petitioners allege that N.W. suffered Acute Disseminated Encephalomyelitis (“ADEM”) and related complications as a result of receiving an influenza (“flu”) vaccine.

Because this decision contains a reasoned explanation for my action in this case, I will post this decision on the United States Court of Federal Claims’ website, 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 posted decision’s inclusion of certain kinds of confidential information. Specifically, under 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). Otherwise, the whole decision will be available to the public. (Id.) 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, 42 U.S.C.A. ' 300aa-10-' 300aa-34 (West 1991 & Supp. 2002). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. ' 300aa.

Respondent denies that N.W.’s ADEM and any related medical problems were caused by the receipt of the flu vaccine. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation filed August 21, 2015, that the issues before them can be settled and that a decision should be entered awarding Petitioners compensation.

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 $10,000.00, in the form of a check payable to Petitioners. This amount represents compensation for past unreimbursable medical expenses; and A lump sum of $55,000.00 in the form of a check payable to Petitioners as guardians/conservators of N.W.’s estate. This amount represents compensation for all remaining damages that would be available under 42 U.S.C. § 300aa-15(a).

Stipulation ¶ 8.

I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioners. 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

IT IS SO ORDERED.

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

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

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