Crotchett v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS

********************* WALLACE ARLEN CROTCHETT, * No. 13-673V * Special Master Moran Petitioner, * * Filed: November 30, 2015 v. * * SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine; AND HUMAN SERVICES, * Guillain-Barré syndrome (“GBS”); * Varicella Zoster reactivation.

Respondent. * ********************* Edward Kraus, Law Offices IIT Chicago-Kent College of Law, Chicago, IL, for Petitioner; Darryl Wishard, United States Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION1 On November 23, 2015, respondent filed a joint stipulation concerning the petition for compensation filed by Wallace Arlen Crotchett on September 12, 2013.

In his petition, Mr. Crotchett 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 he received on September 17, 2010, caused him to suffer from Guillain- Barré syndrome (“GBS”) and/or Varicella Zoster reactivation. Petitioner further alleges that he experienced symptoms of this 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 his alleged injuries.

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

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.

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 $25,000.00 in the form of a check payable to petitioner, Wallace Arlen Crotchett. 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 13-673V 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 ) WALLACE ARLEN CROTCHEIT, ) ) Petitioner, ) No. 13-673 V ECF ) v. ) Special Master Moran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES , ) ) Respondent. ) ~~~~~~~~~~~~~~~ ) STIPULATION The parties hereby stipulate to the following matters: I. Petitioner, Wallace Arlen Crotchett, filed a petition for vaccine compensation under the National Vaccine Injury Compensat ion Program, 42 U.S.C. §§ 300aa-10 to 34 (the "Vaccine Program"). The petition seeks compensation fo r injuri es allegedly related to petitioner's receipt of the influenza ("flu") vaccine, which is contained in the Vaccine Injury Table (the "Table"). 42 C.F.R. § I00.3(a).

2. On September 17, 20 I 0, petit ioner received the flu vaccine.

3. The flu vaccine was administered within the United States.

4. Petitioner alleges that, as a result of receiving the flu vaccine, he suffered from Gu illain-Barre syndrome ("GBS") and/or Varice lla Zoster react ivation, and that he experienced symptoms of this injury for more than six months.

5. Petitioner represents that there has been no prior award or sett lement of a civil action for damages as a result of hi s alleged inju ries.

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

7. Maintaining their above-stated positions. the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation.

8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has fi led an election lo receive compensation pursuant to 42 U.S.C. § 300aa-21 (a)( I). the Secretary of Health and Human Serv ices will issue the fol lowing vaccine compensation payment: A lump sum of $25,000.00, in the fo rm of a check payable to petitioner. Th is amount represents compensation fo r all damages that would be available under 42 U.S.C. § 300aa- l 5(a).

9. As soon as practicable after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to U.S.C. Section 300aa-2 1(a)(l), and an application, the parties will subm it to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceed ing upon this petition.

I0. Petitioner and his attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable 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 compensation programs, insurance policies, Federal or State health benefits programs (other than T itle XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis.

11. Payment made pursuant to paragraph 8 or this Stipulation, and any amounts awarded pursuant to paragraph 9 of thi s Stipulation, will be made in accordance with 42 U.S.C. § 300aa-l 5(i), subject to the avai lability of sufficient statutory funds.

12. The parties and their attorneys furt her agree and stipulate that, except for any award for attorneys' fees and litigation costs, the money provided pursuant to this Stipulation will be used so lely for the benefit or petitioner, as contemplated by a strict construction of 42 U.S.C. § 300aa-1 5(a) and (d), and subject to the cond itions of 42 U.S.C. §§ 300aa- 15(g) and (h).

13. In return for the payments described in paragraphs 8 and 9, petitioner, in his individual capacity and on behal f of his heirs, executors. administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Serv ices from any and all actions, causes of action (incl uding agreements, judgments, cla im s, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected persona l injuries to or death of petiti oner resulting from, or alleged to have resulted from, the flu vaccine administered on September 17, 20 I 0, as alleged by petitioner in a petition for vaccine compensation filed on or about September 12, 20 13, in the United States Court of Federal Claims as petition No. I 3-673Y.

14. If petitioner should die prior to entry of judgment, this agreement shal l be vo idable upon proper notice lo the Court on behalfof either or both of the parties.

15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or irthe Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties' settlement and th is Stipulation shall be voidable at the sole discretion of either party.

16. This Stipu lation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is 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 clearly agreed to. The parties further agree and understand that the award described in this stipulation may reflect a compromise of the parties ' respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement.

17. Thi s Stipulation shall not be construed as an admission by the Un ited States or the Secretary of Health and Human Services that the flu vaccine received by petitioner either caused or sign ificantly aggravated petitioner's alleged injuri es or any other injury.

18. All rights and obligations of petitioner hereunder sha ll apply equa lly to pet itioner's heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

Respectfully submitted, PETITIONER:

'W'uh ~Ldt._ ~ WALLACE ARLEN CROTCH ATTORNEY OF RECORD FOR AUTHORIZED ~RESENTATIVE PETITIONER: OFTHE~~~YGENERAL: ?)(,yl~ . ~~ CdcJ~ ~ e~ Li__ _ EDWARD KRAUS CENT J. MATANOSKI Law Offices Deputy Director TIT Chicago-Kent College of Law TQrts Branch West Adams, Suite 600 Civil Divis.ion Chicago, Il.. 60661 U.S. Department of Justice (312) 906-5072 P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRES ENTATI VE ATTORNEY OF RECORD FOR OF THE SECRET ARY OF HEALTH RESPONDENT: AND HUMAN SERVICE S:

.

A. MELISSA HOUSTON, M.D., M.P.H, FAAP DARRYL R. WISHARD Director, Division of Injury Senior Trial Attorney Compensation Programs (DICP) Torts Branch Healthcare Systems Bureau Civil Division U.S. Department of Health and U.S. Department of Justice Human Services P.O. Box 146 5600 Fishers Lane Benjamin Franklin Station Parklawn Building, Mail Stop 11C-26 Washington, DC 20044-0146 Rockville, MD 20857 (202) 616-4357 Dat~ I( (~ !. I~