Harborth v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 08-777V Filed: September 16, 2015 * * * * * * * * * * * * * * * * UNPUBLISHED EMILY HARBORTH, as independent * executrix of the Estate of DENNIS * HARBORTH, * * Special Master Gowen Petitioner, * * Joint Stipulation on Damages; v. * Influenza (“Flu”) Vaccine; * Joint pain; Myalgias; Fatigue.

SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * Scott R. Doody, Law Offices of Scott R. Doody, Fort Worth, TX, for petitioner.

Althea W. Davis, United States Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1 On October 30, 2008, decedent Dennis Harborth (“Mr. Harborth”) filed a petition pursuant to the National Vaccine Injury Compensation Program,2 42 U.S.C. §§ 300aa-1 to -34 (2006), alleging that as a result of receiving an influenza (“flu”) vaccine on November 1, 2005 he sustained the first symptom or manifestation of joint pain, myalgias, arthralgias, fatigue, and impaired endurance on or about November 12, 2005. Stipulation ¶ 2, 4. Further, Mr. Harborth alleged that 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.

he experienced residual effects of his injury for more than six months. Id. Upon the passing of Mr. Harborth on March 12, 2013, the court granted petitioner’s counsel’s motion to substitute Emily Harborth as petitioner herein on April 3, 2013.

On September 16, 2015, the parties filed a stipulation in which they state that a decision should be entered awarding compensation. Respondent denies that the flu vaccination caused Mr. Harborth’s alleged injuries or his death. Id. at ¶ 7. 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 stipulate that petitioner shall receive the following compensation: A lump sum of $11,000.00, in the form of a check payable to petitioner, Emily Harborth, as the legal representative of the Estate of Dennis Harborth. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

Id. at ¶ 8.

The undersigned approves the requested amount for petitioner’s compensation.

Accordingly, an award should be made consistent with the stipulation.

The clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED.

s/ Thomas L. Gowen Thomas L. Gowen 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.