United States Court of Federal Claims, 2015

Lauber v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided November 6, 2015 · Thomas L. Gowen

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 11-876V Filed: October 13, 2015

* * * * * * * * * * * * * * * * UNPUBLISHED FRIEDA LAUBER, parent of O.K., a minor, *

* Special Master Gowen Petitioner, *

* Joint Stipulation on Damages; v. * Meningococcal Conjugate vaccine;

* Diphtheria-Tetanus-acellular SECRETARY OF HEALTH * Pertussis vaccine. AND HUMAN SERVICES, *

Respondent. *

* * * * * * * * * * * * * * * * Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner. Lara A. Englund, United States Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1

On December 14, 2011, Frieda Lauber (“petitioner”) filed a petition on behalf of her minor daughter, O.K., pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioner alleged that as a result of receiving diphtheria-tetanus-acellular pertussis (“Dtap”)3, and meningococcal conjugate vaccines on or about January 12, 2009, O.K. developed acute disseminated encephalomyelitis (“ADEM”) and multiple sclerosis (“MS”). Stipulation ¶ 2, 4, docket no. 75, filed Oct. 13, 2015. Further, petitioner alleged that O.K. experienced residual effects of her injury for more than six months. Id. at ¶ 4.

On October 13, 2015, the parties filed a stipulation in which they state that a decision should be entered awarding compensation. Respondent denies that the vaccines caused O.K.’s ADEM, MS, or any other injury, or her current condition. Id. at ¶ 6. 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 $210,000.00, in the form of a check payable to Olivia Kerwin on or after December 26, 2015. 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.4

IT IS SO ORDERED. s/ Thomas L. Gowen Thomas L. Gowen Special Master

1 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). 2 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. §§ 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. 3 The medical records indicate that O.K. received a Tetanus-Diphtheria-acellular Pertussis (“Tdap”) vaccination, not a Dtap vaccination as alleged. Nevertheless, both vaccines are covered in this Program. 4 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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