Clement v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: March 7, 2018 * * * * * * * * * * * * * * * * * * * MARK CLEMENT and SHANNON * CLEMENT, as parents of J.C., a * UNPUBLISHED minor, * * No. 16-324V Petitioners, * v. * Special Master Gowen * SECRETARY OF HEALTH * Joint Stipulation; Influenza (“Flu”) AND HUMAN SERVICES, * Vaccination; Transverse Myelitis. * Respondent. * * * * * * * * * * * * * * * * * * * * Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for petitioner.

Adriana R. Teitel, United States Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1

On March 14, 2016, Mark Clement and Shannon Clement (“petitioners”), as parents of their minor son J.C., filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program.2 Petitioners allege that J.C. suffered from transverse myelitis (“TM”) as a result of an influenza (“flu”) vaccine received on September 24, 2013.

On March 6, 2018, respondent filed a joint stipulation providing that a decision should be entered awarded compensation to petitioner. Joint Stipulation (ECF No. 43). Respondent denies that the flu vaccine caused J.C. to suffer from TM, any other injury, or his current condition. Id. Because this decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the website of the United States Court of Federal Claims, pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012). The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website. Id. 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, 42 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. at ¶ 6. Maintaining their respective positions, the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding compensation to petitioner according to the terms of the joint stipulation attached hereto as Appendix A.

The joint stipulation awards the following, which represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a): a) A lump sum of $221,184.10 (which amount represents compensation for first-year life care expenses ($12,722.71); and pain and suffering and future lost wages ($208,461.39) in the form of a check payable to petitioners as guardian(s)/ conservator(s) of the estate of J.C. for the benefit of J.C. No payments will be made until petitioners provide respondent with documentation establishing that they have been appointed as guardian(s)/conservator(s) of J.C.’s estate; b) A lump sum of $3,815.90, which amount represents compensation for past unreimbursable expenses, in the form of a check payable to petitioners, Mark Clement and Shannon Clement; c) A lump sum of $102,135.21, which amount represents reimbursement of a lien for services rendered on behalf of J.C., in the form of a check payable jointly to petitioners and: California Department of Health Care Services Recovery Branch – MS 4720 P.O. Box 997421 Sacramento, CA 95899-7421 Attn: Class Action Unit DHCS Account No.: C90799099E-VAC03 Petitioners agree to endorse this payment to California Department of Health Care Services.

d) An amount sufficient to purchase the annuity contract described in paragraph of the joint stipulation, paid to the life insurance company from which the annuity will be purchased.

I find the stipulation reasonable and I adopt it as the decision of the Court in awarding damages, on the terms set forth therein. Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties jointly or separately filing notice renouncing their right to seek review.