Macomber v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************* CHARLENE MACOMBER, * * No. 13-980V Petitioner, * Special Master Christian J. Moran * v. * Filed: November 19, 2015 * SECRETARY OF HEALTH * Stipulation; influenza (“flu”) AND HUMAN SERVICES, * vaccine; hypotensive episode and * encephalopathy.

Respondent. * ********************* David C. Richards, Christensen and Jensen, P.C., Salt Lake City, UT, for Petitioner; Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION1 On November 18, 2015, respondent filed a joint stipulation concerning the petition for compensation filed by Charlene Macomber on December 12, 2013. In her petition, Ms. Macomber alleged that the influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which she received on September 12, 2011, caused her to suffer from a hypotensive episode and encephalopathy, and that she experienced symptoms of the injury for more than six months. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of her alleged injuries.

The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the party has 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website.

Respondent denies that the flu vaccine either caused or significantly aggravated petitioner’s alleged injury or any other injuries, and denies that petitioner’s current disabilities are the result of a vaccine-related injury.

Nevertheless, the parties agree to the joint stipulation, attached hereto as “Appendix A.” The undersigned finds said stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

Damages awarded in that stipulation include: A lump sum of $75,000.00 in the form of a check payable to petitioner, Charlene Macomber. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 13-980V according to this decision and the attached stipulation.2 Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357- 6360.

IT IS SO ORDERED.

s/ Christian J. Moran Christian J. Moran Special Master

Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) CHARLE E MACOMB ER, ) ) Petitioner, ) No. I 3-980V ECF ) V. ) Special Master Moran ) SEC RETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) __________ ____ ) STIPULATION The parties hereby stipulate to the fo llowing matters: I. Petit ioner, Charlene Macomber, filed a petition for vaccine compensation under the National Vaccine Inj ury Compensation Program, 42 U.S.C. §§ 300aa- I0 to 34 (the " Vaccine Program"). The petition seeks compensation for injuries alleged ly related to petitioner' s rece ipt of the infl uenza ("fl u'") vaccine, which is contai ned in the Vaccine Injury Tab le (the ·Table'"), 42 C. F.R. § I00.3(a).

2. On September 12, 20 I I, petitioner received the flu vacci ne.

3. The flu vaccine was admini stered within the United States.

4. Petitioner all eges that, as a result of receiving the flu vaccine, she suffered from a hypotens ive episode and encephalopath y, and that she experienced symptoms of the injury for more than six months.

5. Petitioner represents that there has been no prior award or settlement of a civil action fo r damages as a result of her all eged inj uries.

6. Respondent den ies that the nu vaccine either caused or significantl y aggravated petitioner's alleged inju ry or any other injuries, and deni es that petitio ner's current disabi l ities are th e result o f a vacc ine-related injury.

7. Maintaining their above-stated positions, the parti es neverth eless now agree that the issues between them shal I be settled and that a deci sion should be entered award in g the compensatio n described in paragraph 8 o f th is Stipu lati on.

8. A s soon as practicable after an entry of judgment reflecting a decision consistent with the terms of thi s Stipulation, and after petitioner has filed an electi on to receive compensation pursuant to 42 U.S.C. § 300aa-2 I (a)( I ), the Secretary o f H ea lth and 1l uman Serv ices w ill issue the following vacc ine compensation payment: A lump sum of$75,000.00, in the form o f a check payable to petitioner. This amount represents com pensat ion for al I dam ages that wo uId be ava ilable under 42 U.S.C. § 300aa- l 5(a).

9. As soon as practicable after the entry o f judgment on entitlement in th is case, and after petitioner has fi led both a proper and tim ely election to receive co mpensation pursuant to U .S.C. § 300aa-2 I (a)( I ), and an application, the parties w ill subm it to fu rther proceedings before the special master to award reasonable attorn eys· fees and costs incurred in proceeding upon thi s petition.

I 0. Petitioner and her attorn ey represent that compensation to be provided pursuant to thi s Stipul ation is not for any item s or serv ices for w hi ch the Program is not prim aril y l iab le under 42 U.S.C. § 300aa- I 5(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensatio n programs, insurance po licies, Federal or State health benefits program s (other than T itle X IX o f the Social ecurity A ct (42 U . .C. § 1396 et seq.)), or by entities that provide hea lth serv ices on a pre-paid basis.

11. Payment made pursuant to paragraph 8 of this Stipulation, and any amounts awarded pursuant to paragraph 9 of thi s Stipul ation, will be made in accordance with 42 U.S.C. § 300aa- I 5( i), subj ect to the availabi Iity of suffi cient statutory funds.

12. The parties and their attorneys furth er agree and stipul ate that, except fo r any award fo r attorneys' fees and litigation costs, the money provided pursuant to this Sti pulation will be used so lely for the benefit of petitioner, as contemplated by a strict construction of 42 U.S.C. § 300aa-1 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa- 15(g) and (h).

13. In return for the payments described in paragraph s 8 and 9, petitioner, in her indi vidual capacity and on behalf of her heirs, executors, admin istrators, successors or assigns, does fo rever irrevocably and unconditionall y release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions, causes of acti on (inc luding agreements, judgments, claims, damages, loss of services, ex penses and all demands of whatever kind or nature) that have been brou ght, could have been brought, or coul d be timely brought in the Court of Federal Claims, under the ational Vaccine Injury Cor pcnsat ion Program, 42 U.S.C. § 300aa- I0 et seq. , on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal inj uries to or death of petitioner resulting from, or alleged to have resulted from, the flu vacc ine admini stered on September 12, 20 11, as alleged by petitioner in a petition for vaccine compensation fil ed on or about December 12, 20 13, in the United States Court o f Federa l Claims as petition o. 13-980V.

14. If petitioner should di e prior to entry of judgment, thi s agreement shall be voidabl e upon pro per notice to the Court on bchal f of either or both of the parties.

15. If the special master fail s to issue a decision in comp lete confo rmity with the terms of this Sti pulation or if the Court of Federal Claims fa ils to enter j udgment in conform ity with a dec ision that is in complete conform ity w ith the term s or this Stipu lation, then the parties' settlement and th is Sti pu lat ion shall be vo idable at the sole di scretion or either party.

16. This Stipulation expresses a full and complete negotiated settlement o f li ability and dam ages claimed under the National Childhood Vacc ine Injury Act or 1986, as amended, except as otherw ise noted in paragraph 9 above. There is absolutely no agreement on the part o f 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 parti es further agree and understand that the award descr ibed in thi s stipu lation may reflect a compromise o f the parties' respective positions as to liabil ity and/or amount or damages, and further, that a change in the nature of the injury or conditi on or in the items o f compensation sought, is not grounds to modify or rev ise this agreement.

17. Th is Stipulation shall not be construed as an admi ssion by the United States or the Secretary of Health and Human Services that the flu vaccine received by petitioner either caused or significantly aggravated petitioner"s al leged inj ury, or any other injury or disability.

18. A ll rights and ob ligations of peti tioner hereunder shall apply eq uall y to petitioner's heirs, executors, admini strators, successors, and/or assigns.

EN D OF STI PULATI ON

Respectfully submitted, PETITIONER:

~~.~ CHARLENE MACOMBER ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

Q 7~~ ~WtIARDS ;S:" East 200 South, Suite 11 00 Deputy Director Salt Lnke City, UT 8411 I Torts Branch (80 I) 323-5000 Civi l Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Stution Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY O F RECORD FOR OF THE SECRET ARY OF IlEALTR RESPONDENT: AND HUMAN SERVICES:

[bfA. MELTSSA HOUSTON;M:b:,.P.II, PAAP ~ DARRYL R. WISHARD Director, Division oflnjury Senior Trial Attorney Compensation Programs (DICP) Torts Branch Healthcare Systems Bureau Civil Division U.S . Depa1tmcnt of Health and U.S. Depaitment of Justice Human Services P.O. Box 146 5600 Fishers Lane Benjamin Frnnklin Station Parklawn Building, Mai l Stop l l C-26 Washington, DC 20044-0146 Rockville, MD 20857 (202) 616-4357

Dated: / I { ( 13{ ( cJ