Libby v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 09-820V Filed: August 23, 2016 * * * * * * * * * * * * * * * * JOHN LIBBY and KARLA STONE, as * UNPUBLISHED parents and natural guardians of the minor, * S.L., * Special Master Gowen * Petitioners, * * Joint Stipulation on Damages; v. * Influenza Vaccine; * Gross Motor Regression; Ataxia; SECRETARY OF HEALTH * Speech Regression; Nystagmus; AND HUMAN SERVICES, * Significant Aggravation of * Pre-existing Neurodevelopmental Respondent. * Disorder. * * * * * * * * * * * * * * * * * Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioners.

Glenn A. MacLeod, United States Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1 On November 25, 2009, John Libby and Karla Stone (“petitioners”) filed a petition on behalf of their minor daughter, S.L., pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioners alleged that as a result of receiving an influenza (“flu”) vaccination on November 28, 2006, S.L. suffered from gross motor regression, speech regression, nystagmus and ataxia, with subsequent aggravating sequelae lasting more than six months. Stipulation ¶ 2, 4, filed Aug. 23, 2016. Petitioners later alleged that S.L. suffered a Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14 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).

The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. significant aggravation of a pre-existing neurodevelopmental disorder that was due to a genetic mutation, and that she suffered the residual effects of this alleged significant aggravation for more than six months. Id. at ¶ 4.

On August 23, 2016, the parties filed a stipulation in which they state that a decision should be entered awarding compensation. Respondent denies that S.L. suffered from gross motor regression, speech regression, nystagmus, and ataxia, or any other injury or condition, as a result of her flu vaccination. Id. at ¶ 6. Respondent also denies that the flu vaccine caused S.L. to suffer a significant aggravation of any pre-existing injury or condition. Id. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. 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 petitioners shall receive the following compensation: 1) A lump sum of $1,183,455.70, which amount represents compensation for first year life expenses ($88,455.70) and trust seed funds ($1,095,000.00), in the form of a check payable to Regions Bank, as trustee of the grantor reversionary trust established for the benefit of S.L.; 2) A lump sum of $500,000.00, which amount represents compensation for lost future earnings and pain and suffering combined, in the form of a check payable to petitioners as guardians/conservators of the estate of S.L. for the benefit of S.L.

No payments shall be made until petitioners provide respondent with documentation establishing that they have been appointed as the guardians/conservators of S.L.’s estate; 3) A lump sum of $50,000.00, which amount represents compensation for past unreimburseable expenses, in the form of a check payable to petitioners, John Libby and Karla Stone; and 4) An amount sufficient to purchase an annuity contract to provide the benefits described in paragraph 10 of the stipulation, to be paid to a life insurance company meeting the criteria described in paragraph 9.

These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). Id. at ¶ 8.

The undersigned approves the requested amounts for petitioners’ compensation.

Accordingly, an award should be made consistent with the stipulation.

The clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3

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

IT IS SO ORDERED.

s/ Thomas L. Gowen Thomas L. Gowen Special Master