Reichard v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************* SARAH ELIZABETH REICHARD, * No. 14-904V * Special Master Christian J. Moran Petitioner, * * v. * Filed: March 8, 2016 * SECRETARY OF HEALTH * Stipulation; tetanus-diphtheria- AND HUMAN SERVICES, * acellular pertussis (“Tdap”) * vaccination; Guillain-Barré syndrome Respondent. * (“GBS”); attorneys’ fees and costs. ********************* Kelly D. Burdette, Burkett & Burdette, Seattle, WA, for Petitioner; Alexis B. Babcock, U.S. Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION1 On February 22, 2016, respondent filed the parties’ joint stipulation concerning the petition for compensation filed by Sarah Elizabeth Reichard on September 25, 2014. Petitioner alleges the tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which Ms. Reichard received on August 2, 2013, caused her to develop 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 petitioner's GBS was caused-in-fact by her Tdap vaccination, and denies that the vaccine caused any other injury or her current condition.

The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 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.

Compensation awarded in that stipulation includes: a. A lump sum payment of $85,000.00 in the form of a check payable to petitioner, Susan Elizabeth Reichard. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a); and b. A lump sum of $18,035.43, in the form of a check payable jointly to petitioner and petitioner’s attorney, Kelly D. Burdette, of Burkett & Burdette, for attorneys’ fees and costs available under 42 U.S.C. §300aa-15(e), and, in compliance with General Order #9, no out-of- pocket expenses were incurred by petitioner in proceeding on the petition.

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 14-904V according to this decision and the attached stipulation.2 Any questions may be directed to my law clerk, Shannon Proctor, 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 T11E UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECW.. MASTERS

) SARAH ELIZABE1H REICHARD, ) ) Petitioner, ) ) No. 14-904V v. ) Spedal Muter Moran ) SECRETARY OF HEALTII AND ) HUMAN SERVICES, ) ) ~pondent. )

The parties hereby stipulate to tho following matters: 1. On September 2S, 2014, Sarah Elil.abeth Reichard ("'petitioner") fiJed a petition for vaccine compensation under the National Vaccine Injury Compensa1ion Program, 42 U.S.C. §300aa-IO to 34 (the "Vaccine Propmj. The petition seeks compensation for injuries allegedly related to petitioner's receipt of the Tctanus-diphtheria-acellular pertussis ("Tdap.,) vaccine, which vaccine is ~eel in the Vaccine Injury Table (the "fable"), 42 C.F.R. f lOOJ(a).

2. Petitioner received a Tdap immunization on August 2. 2013.

3. The vaccine was administered within the United States.

4. Petitloner alleges that she suffered fiom Guitlain Barre Syndrome ("G!JS") that was caused·in· fact by her Tdap vaccination. Petitioner further alleges that she experienced residual effects of this btjury for more than six months.

S. Petitioner represents that there bas been no prior award or settlement of a civil action

· I· for damages as a result of her alleged GBS.

6. Respondent denies that pedcloner's alleeed Injuries were causod·in·fact by her Tdap vaccination, and denies that the vaccine caused any other iajury or her cwrent condition.

7. Maintainina their abovo-stated positions, the parties nevertheless now agree that tho issues between them shall be settled and that a decision should be entered awarding the compensadon descn1>ed in paraaraph 8 of this Stipulation.

8. As soon as practicable after an entry ofjudgment reflecting a decision consistent with the tams of this Stipulation, and after petitioner has filed an election to receive compensation pursuantto 42 U.S.C. § 300aa-2l(aXl). the Secretary of Health and Human Services will issue the following vaccine compensation payments: a. A lump sum of $85,000.00 in the form of a cbeclc payable to petitioner. This amount represents compensation for all damaacs that would be available under 42 U.S.C. § 300u-1S{a}; and b. A lump sum ofSl 8,035.43 In the form of a check payable jointly to petitioner and petitioner's attorney, for attorney's fees and costs available under 42 U.S.C. § 300aa-1 S(e}, and in complianoc with Gc:ncral Order #9, no out-of-pocket expenses wen: incwrcd by petitioner ln prc><icedlng on the petition.

9. Petitioner and her attorney represent that they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa·IS(&). including State compcmation programs, insurance policies, Federal or State health benefits programs (other than Tide XlX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or entities that provide health services on a pre-paid basis.

10. Payment made pursuant to paragraph 8 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-1 S(i), subject to the availability of sufficient statutory funds.

11. The parties and their attorneys further ap:e and stipulate that, except for any award for attorney's fees and litigation costs and past umeimbursable expenses, the money provided pursuant to this Stipulation will be used solely for the beneflt of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa·l S(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-1S(g) and (b).

t 2. In return for the payments descrlbcd In parasraPfl 8, petitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns, does fon:ver irrevocably and unconditionally release, acquit and discharae the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including qrecments, Judaments, claims, damag~ 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 Proaram, 42 U.S.C. § 300aa-10 ct seq., on account ot; or in any way growing out ot; any and all known or unknown, suspcctcd or unsuspected personal injuries to or death of petitioner resultins from. or alleged to have resulted from, tho Tdap vaccination administered on August 2, 2013 as alleged in a petition for vaccine compensation filed on or about Scptanber lS, 2014, in tho United States Court of Fede:al Claims as petition No. 14-904V.

13. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or bo1h of the parties.

14. If the special master fails to issue a decision in (:()ftlplete c;onfonnity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete confonnity with the terms of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of eitha: party.

-3- 1S. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of I 986, as amended. 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 heicln expressly stated and clearly agreed to. The parties further aarce and understand that the award dcsml>cd in 1his Stipulation may reflect a compromise of the parties' rcspcctivc positions as to liability and/or amount of damages, and further, that a chanae in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement.

16. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Serviocs that the Tdap vaccine caused petitioner's alleged GBS, or any other injury or her current disabilities.

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

END OF STIPULATION I I I I I I I I I I I I I I I I I Respectfully submitted, PETITIONER:

ATl'ORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE

~t.A~ OF THE ATl'ORNEY GENERAL: 4,;/{!@4¢ KELLY D. BURDETTE VINCENT J. MXfANOSKI Attorney for Petitioner Deputy Director Burkett & B\l'dette Torts Branch 2101Fourth Avenue Civil Division Suite 1830 U.S.DeparbnentofJusticc Seattle, WA 98121 P.O. Box 146 {206) 441-5597 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRF.SENTATIVE A1TORNEY OF RECORD FOR OF THE SECRET OF REA.LTD RESPONDENT: AND BUMAN

{lQ.iLl~ &_90 ~- N MD ALEXIS B. BABCOCK Ac:tin& Director, Division of Senior Trial Attorney Injury Compensation Programs (DICP) Torts Branch Healthcare Systems Bureau Civil Division U.S. Department of Health U.S. Dcpal1ment of Justice and Hwnan Services P.O. Box 146 5600 Fishers Lane Benjamin Franklin Station PBJklawn Building. Mail Stop 08NI 468 Washington, DC 20044-0146 Rockville, MD 20857 (202) 616-7678 Dated: a\aa. \ \( a

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