Yanagawa v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-1376V Filed: June 28, 2016 UNPUBLISHED **************************** NAOMI YANAGAWA, * * Petitioner, * Joint Stipulation on Damages; v. * Influenza (“Flu”) Vaccine; * Guillain-Barre Syndrome (“GBS”); SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, * * Respondent. * * **************************** Leah Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.

Darryl Wishard, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1 Dorsey, Chief Special Master: On November 13, 2015, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered from Guillain-Barre syndrome (“GBS”) following a November 16, 2012 influenza (“flu”) vaccination. Petition at 1; Stipulation, filed June 27, 2016, at ¶¶ 1-2. Petitioner further alleges the vaccine was administered within the United States, petitioner experienced symptoms of the injury for more than six months, and there has been no prior award or settlement of a civil action for damages as a result of her alleged injuries. Petition at 1; Stipulation at ¶¶ 3-5.

“Respondent denies that the 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.” Stipulation at ¶ 6.

Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access.

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

Nevertheless, on June 27, 2016, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

The parties stipulate that petitioner shall receive the following compensation: A lump sum of $187,000.00 in the form of a check payable to petitioner.

Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under 42 U.S.C. § 300aa-15(a). Id. The undersigned approves the requested amount for petitioner’s compensation.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.

Case 1:15-vv-01376-UNJ Document 24 Filed 06/27/16 Page 1 of 5

IN THE UNITED ST ATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) NAOMI YANAGA WA, ) ) Petiti oner, ) No. I 5- I 376 V ECF ) V. ) C hief Specia l Master Dorsey ) SEC R ETA RY OF H EA LT H ) AN D HUMAN SERVICES, ) ) Respondent. ) ~~~~~~~~~~~~~~ ) STIPULATION The parties here by stipulate to the fo llowing matters: I. Petitio ner, Naomi Yanagawa, fil ed a petitio n for vaccine compensation under the Natio na l Vaccine Injury Compensation Program, 42 U.S.C. §§ J OOaa-10 to 34 (the " Vaccine Program"). The petitio n seeks compensation for injuries allegedl y re lated to petitioner's receipt o f the influe nza ("flu ") vaccine, which is conta ined in the Vacc ine Injury Table (the "Table"), 42 C.F.R. § I 00. 3(a).

2. On November 16, 20 I 2, petitioner received the flu vacc ine.

3. The vacc in e was admini stered w ithin the United States.

4. Petitioner a lleges that, as a result of receiv ing the vaccine, she suffe red fro m G uilla in-Barre syndro me ("G BS"), and that s he experienced symptoms o f thi s injury for mo re than s ix mo nths.

5. Petitio ner represents that there has been no pri or award o r settlement of a ci vil actio n for damages as a result o f her a lleged injuri es.

Case 1:15-vv-01376-UNJ Document 24 Filed 06/27/16 Page 2 of 5

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

7. Maintaining their above-stated positions, the parties never1heless now agree th at the issues between them shall be settl ed and that a deci sion should be entered awarding the compensation described in paragraph 8 of this Stipulati on.

8. As soon as practicab le after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has fi led an election to receive compensation pursuant to 42 U.S.C. § 300aa-2 l (a)( I), the Secretary of Hea lth and Human Services wi ll issue the fo llowing vaccine compensation payment: A lump sum of $ 187,000.00, in the form of a check payable to petiti oner.

Th is amount represents compensation for all damages that would be avai lab le under 42 U.S.C. § 300aa-1 5(a).

9. As soon as practicable after the entry of judgment on entitlement in thi s case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to U.S.C. Section 300aa-2 I(a)( I), and an application, the parties wi 11 submit to further proceedin gs before the special master to award reasonable attorneys ' fees and costs incurred in proceedi ng upon this petition.

I 0. Petitioner and her attorney represent that compensation to be prov ided pursuant to this Stipulation is not for any item s or services for which the Program is not primarily liable under 42 U.S.C. § 300aa- l 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, Federa l or State health benefits program s (other than Title XIX of the Soc ial Security Act (42 U.S.C. Case 1:15-vv-01376-UNJ Document 24 Filed 06/27/16 Page 3 of 5

§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.

11 . Payment made pursuant to paragraph 8 of thi s Stipulation, and any amounts awarded pursuant to paragraph 9 of thi s Stipul ation, wi ll be made in accordance with 42 U.S.C. § 300aa- I 5(i), subject to the availability of su fftcient statutory fund s.

12. The parties and their attorneys fu11her agree and stipulate that, except for any award for attorneys' fees and liti gation costs, the money prov ided pursuant to this Stipulation will be used solely for the benefit of petitioner, as contemplated by a strict construction of 42 U .S.C. § 300aa-l 5(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa-l 5(g) and (h).

13. In return fo r the payments described in paragraph s 8 and 9, petitioner, in her indi vidual capacity and on behalf of her heirs, executors, admini strators, successors or assigns, does forever irrevocably and unconditionally release, acq uit and discharge the United States and the Secretary of Health and Human Serv ices from any and all actions, causes of action (including agreements, judgments, claim 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 timel y brought in the Court of Federal Claims, under the National Vacc ine Injury Compensation Program, 42 U.S.C. § 300aa- l 0 et seq., on account of, or in any way growi ng out of, any and all known or unknown, suspected or un suspected personal injuries to or death of petitioner resulting from , or alleged to have resulted fro m, the vaccine administered on November 16, 20 12, as alleged by petitioner in a petition for vac~ ine compensation filed on or about November 13, 20 15, in the United States Court of Federal Claims as petition No. I 5-l 376Y.

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

15. If the special master fai ls to issue a decision in complete conformity with the term s Case 1:15-vv-01376-UNJ Document 24 Filed 06/27/16 Page 4 of 5

of this Stipulation or ifthe Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulati on, then the parties' settlement and thi s Stipulati on shall be voidabl e at the sole discretion of either party.

16. This Stipulation expresses a full and complete negoti ated settlement of li ability 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 clearl y agreed to. T he parties furth er agree and understand that the award described in thi s stipul ati on may re flect a compromi se of the parties' respective pos itions as to liability and/or amount of damages, and further, that a change in the nature o f the injury or condition or in the items of compensation sought, is not grounds to modify or rev ise this agreement.

17. This Stipul ati on shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the vaccin e rece ived by petitioner either caused or signifi cantly aggravated petitioner' s alleged injuries or any other injury.

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

END OF STlP ULATlON

Case 1:15-vv-01376-UNJ Document 24 Filed 06/27/16 Page 5 of 5 Jun 20 16 12:37a p.6

Respectfully subm.iued, PETITIO NER:

NAOMI YANAGAWA ATIORN EY OF RECORD FOR AUfHOR JZED REPRESE NTATIVE PETmON ER: OFT.HE ATIORN EY GENERAL:

%~ Law Offices of Leah V. Durant, P LL.C.

888 16111 Street NW, Suite 800 ~~11&(; Deputy Director Torts Branch Washington, DC 20006 Civil Division (202) 775-9200 U.S. Department ofJustice P.O. Box 146 Benjamin Franklin. Station Washington, DC 20044-0146 ATIORN EY OF RECORD FOR RESPONDENT:

NN M.D DARRYL R. WISHARD Actina o\rect.or, Division oflnjury Sr.ni.or Trial Attorney ·C-Ompcoaation Programs Torts Branch Healthcare Systems·Bureau Civil Division U.S. Department of Heal1h U.S. Department of Justice and Human Services P.O. Box 146 .

5600 Fishers Lane Benjamin Fnmklin SIBtion P&Iklawn Building, Mail Stop 08Nl46B Washington, DC 20044-014 6 Rockville, MD 20857 Tel: (202) 616-4357