Mirra v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-908V (Not to be Published) ************************* * ANTHONY MIRRA, Individually and as * the representative of the estate of * NANCY TONER, * * Filed: May 31, 2016 Petitioner, * * v. * Decision by Stipulation; Damages; * Influenza (“Flu”) Vaccination; SECRETARY OF HEALTH * Guillain-Barré Syndrome (“GBS”); AND HUMAN SERVICES, * Chronic Inflammatory Demyelinating * Polyneuropathy (“CIDP”).

Respondent. * * ************************* Michael J. Williams, Cellino and Barnes, P.C., Buffalo, NY, for Petitioner.

Gordon Elliot Shemin, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On September 26, 2014, Anthony Mirra filed a petition, on behalf of the Estate of Nancy Toner, seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that Ms. Toner suffered from Guillain-Barré syndrome (“GBS”) and/or chronic inflammatory demyelinating polyneuropathy (“CIDP”) as a result of her receipt of the influenza (“flu”) vaccine on or about September 29, 2011. Moreover, Petitioner alleges that Ms. Toner’s death on August 12, 2014, was a sequela of her GBS and/or CIDP.

Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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). Otherwise, the whole decision will be available to the public. Id. The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Respondent denies that Ms. Toner suffered any injury as a result of the flu vaccine administered on or about September 29, 2011, and further denies that Ms. Toner’s death was a sequela of her alleged vaccine-related GBS and/or CIDP. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed on May 31, 2016) that the issues before them could be settled, and that a decision should be entered awarding Petitioner compensation.

I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The stipulation awards:  A lump sum of $6,616.93, which represents reimbursement of a State of New York Medicaid lien, in the form of a check payable jointly to Petitioner and NYC Human Resources Administration P.O. Box 414799 Boston, MA 02241 Petitioner agrees to endorse this payment to the State; and  A lump sum of $475,000.00 in the form of a check payable to Petitioner as Legal Representative of the Estate of Nancy Toner.

Stipulation ¶ 8. This amounts represents compensation for all damages that would be available under Section 15(a) of the Act.

I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.3

IT IS SO ORDERED.

/s/ Brian H. Corcoran Brian H. Corcoran Special Master

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review.