Malik v. Secretary of Health and Human Services

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

********************* SHAGUFTA MALIK, * No. 13-595V * Special Master Moran Petitioner, * * Filed: September 22, 2015 v. * * SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine; AND HUMAN SERVICES, * Guillain-Barré Syndrome (“GBS”). * Respondent. * ********************* F. John Caldwell, Maglio, Christopher & Toale, PA, Sarasota, FL, for Petitioner; Traci Patton, United States Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION1 On September 11, 2015, respondent filed a joint stipulation concerning the petition for compensation filed by Shagufta Malik on August 21, 2013. In her petition, Ms. Malik 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 October 15, 2010, caused her to suffer from Guillain-Barré Syndrome (“GBS”). Petitioner represents that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition.

Respondent denies that the flu vaccine caused petitioner to suffer GBS or any other injury or condition.

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.

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.

Damages awarded in that stipulation include: A. A lump sum of $150,000.00 in the form of a check payable to petitioner, Shagufta Malik. This amount represents compensation for all damages, other than reimbursement of a State of New Jersey Medicaid lien, that would be available under 42 U.S.C. § 300aa- 15(a); and B. A lump sum of $26,565.18, which amount represents reimbursement of a State of New Jersey Medicaid lien, in the form of a check payable jointly to petitioner and Treasurer, State of New Jersey Division of Revenue Lockbox 656 S. Broad Street, 1st Floor Trenton, NJ 08646 Medicaid Beneficiary: Shagufta Malik File No.: EAR/40603 Petitioner agrees to endorse the check to the State of New Jersey.

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 13-595V 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.

Case 1:13-vv-00595-UNJ Document 55 Filed 09/11/15 Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

) SHAGUFTA MALIK, ) ) Petitioner, ) No. J3-595V V, ) Special Master Moran ECF SECRETARY OF HEALTH AND HUMAN ) SERV ICES , ~ Respondent. ) ~~~~~~~~~~~~~- ) ~TIPULATION The parties hereby stipulate to the fo llowing matters: 1. Shagufta Malik, petitioner, fi led a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U .S.C. §300aa-10 et seq. (the "Vaccine Program"). The petition seeks compensation for injuries alleged ly related to Ms. Malik' s receipt of the influenza (" flu") vaccine, which vaccine is contained in the Vaccine Inj ury Table (the "Table"), 42 C.F.R . § 100.3(a).

2 . Petitioner received her flu immunization on October 15, 20 10.

3. T he vaccine was administered within the United States.

4. Petitioner alleges that the fl u vacc1ne caused her to suffer Guillain-I3ane Syndrome ("GBS").

5. Petitioner represen ts that there has been no prior award or settlement of a civil action for damages o n her behalf as a result of her cond ition.

6. Respondent denies that the flu vaccine caused petitio ner to suffer GDS or any other injury or condition .

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7. Maintaining their above-stated positi ons, the patties nevertheless now agree that the issues between them shall be settled and that a decision shou ld be entered awarding the compensation described in paragraph 8 of this Stipulation.

8. As soon as practicabJe after an entry of judgment reflectfog a decision consistent with the terms of thi s Stipulation, and after petiti oner has fi led an election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(a)( l), the Secretary of Health and Human Services will issue the fo llowing vaccine compensation payments: a. A lump sum of $ 150,000 .00, in the fonn of a check payable to petitioner. This amotmt represents compensation for aU damages, other than reimbursement of a State of New Jersey Medicaid lien, that would be available under 42 U.S.C. § 300aa-15(a); and b . A lump sum of $26,565. 18, wh.ich amount represents reimbursement of a State of New Jersey Medicaid lien, in the form of a check payable jointly to petitioner and Treasurer, State of New Jersey Divis ion of Revenue Lockbox 656 S. Broad Street, 1st Floor Trenton, NJ 08646 Medicaid Beneficiary: Shagufta Malik Pile No.: EAR/40603 Petitioner agrees to endorse the check to the State of New Jersey.

9. As soon as practicable afier the entry of judgment on entitlement in this case, and after petitioncl' has fi led both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(l ), and au appl ication, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition.

10. Petitioner and her attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primari ly liable

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under 42 U.S.C. § 300aa-l S(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 Title XIX of lhe Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis.

11. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa- l 5(i), subject to lhe availability of sufficient stalutory funds.

12. The pruiics and their attorneys further agree and stipulate Lhat, except for any award for attorneys' fees and litigation costs, and past unreimbursable expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict constn1ction of 42 U.S.C. § 300aa-15(a) and (d), and subj ect lo the conditions of 42 U.S.C. § 300aa-15 (g) and (h).

13. In return for the paym ents described in paragraphs 8 and 9, petitioner, in her individual capacity, and on hehalf of her 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 Services from any and all actions or causes of action (including agreements, judgments, claims" damages, loss of services, expenses and aU demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Cowt of Federal Claims, under the National Vaccine Injury Compensation Program, 42 V.S .C. § 300aa- l 0 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or deatl1 of petitioner resulting from, or alleged to have resulted from, the flu vaccination administered on October 15, 2010, as

Case 1:13-vv-00595-UNJ Document 55 Filed 09/11/15 Page 4 of 5

aJLeged by petitioner in a petition for vaccine compensation filed on or about August 21, 2013, in the United States Court of Federal Claims as petition No. 13-595V.

14. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties.

15. If the special master fails to issue a decision in complete confom1ity with the terms of this Stipulation or if the Cowt 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 this Stipulation shall be voidable at the sole discretion of either party.

16. This Stipulation 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 othe1wise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto lo make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The pa1ties 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. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that tbe flu vaccine caused petitioner's OBS or any other injury or cond ition.

18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

Case 1:13-vv-00595-UNJ Document 55 Filed 09/11/15 Page 5 of 5 Sep 03 15 03:12p Abdu l J. Malik 2013337441 p.1

Respectfully submitted,

PETITIONER:

ATTORNEY OF RECORD FOR AUTHORIZED REPRSENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: . ' \J~) .JV\~t.-. ~.

TOALE,PA VINC;;?J, Deputy Director MATA~ 1605 Main Street Torts Branch Smte 71 o Civil Division Sarasota, FL 34236 U.S. Department of Justice Tel: (888) 952-5242 P.O. Box 146 Benjamin, Franklin Stntion Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTOR~EYOFRECORDFOR OF THE SECRETA HEALTH RESPONDENT: ANDHUMAN <R

QUSTON, M.D., M.P.H., FAAP ~'£& IB.ACIR. PATTON Di.rector, rnvision of Injury Compensation Senior Trial Attorney Programs (DICP) Torts Branch H ealthcare Systems Bureau Civil Division U.S. Department of Health and Human Services U.S. Department of Justice 5600 Fisbers Lane P.O. Box 146 Parklawn Building, M ai l Stop I lC-26 Benjamin Franklfa Station Rockville, MD 20857 Washington, DC 20044-0146 Tel: (202) 353wl589 Dated : &¢.((1 ,)otQ