Wyllis v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: December 3, 2018 *************************

AMY WYLLIS, * UNPUBLISHED Next Friend of R.S., a Minor * * No. 11-764V *

Petitioner, * Special Master Gowen v. * * Joint Stipulation; Influenza (Flu); SECRETARY OF HEALTH * Guillain-Barré Syndrome (GBS); AND HUMAN SERVICES, * Chronic Inflammatory * Demyelinating Polyneuropathy Respondent. * (CIDP). *************************

Scott William Rooney, Nemes, Rooney P.C., Farmington Hills, MI, for petitioner.

Lisa Ann Watts, United States Department of Justice, Washington, DC, for respondent.

DECISION ON STIPULATION1

On November 14, 2011, Amy Wyllis2 (“petitioner”) filed a petition in the National Vaccine Injury Compensation Program (“Program”) on behalf of her minor daughter, R.S.3 Petition (ECF No. 1). Petitioner alleged that R.S. developed Guillain-Barré Syndrome (“GBS”) and/or Chronic Inflammatory Demyelinating Polyneuropathy (“CIDP”) as a result of receiving an influenza (“flu”) vaccination on October 10, 2010. Id. at ¶ 47.

On December 3, 2018, the parties filed a joint stipulation in which they stated that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 180).

Respondent denied that the vaccine caused R.S. to suffer from GBS, CIDP, or any other injury, and further denies that R.S.’s current disabilities are sequelae of a vaccine-related injury. Id. at ¶ 6.

Maintaining their above-stated 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: a. A lump sum of $274,621.62, which amount represents compensation for first year life care expenses ($24,621.62) and pain and suffering ($250,000.00), in the form of a check payable to petitioner as guardian/conservator of the estate of R.S. for the benefit of R.S. No payments shall be made until petitioner provides respondent with documentation establishing that she has been appointed as the guardian/conservator of R.S.' s estate; b. A lump sum of $10,237.17, which amount represents reimbursement of a State of Michigan lien for services rendered on behalf of R.S., in the form of a check payable jointly to petitioner and the State of Michigan, and mailed to: Michigan Department of Health and Human Services Third Party Liability Division P.O. Box 30053

Lansing, MI 48909

Medicaid ID#: 0037191527 Attn: Roxanne Schafer

Petitioner agrees to endorse this check to the State of Michigan.

c. A lump sum of $13,420.45, which amount represents reimbursement of a Meridian Health Plan, a Medicaid plan, lien for services rendered on behalf of R.$., in the form of a check payable jointly to petitioner and Equian, LLC

P.O. Box 32140

Louisville, KY 40232-2140 Equian's File No.: 600919-110515 Attn: Stephen Snabb Petitioner agrees to endorse this check to Equian, LLC.

d. A lump sum of $1,712.98, which amount represents reimbursement of a Midwest Health Plan, a Medicaid plan, lien for services rendered on behalf of R.S .• in the form of a check payable jointly to petitioner and

Equian, LLC P.O. Box 32140 Louisville, KY 40232-2140 Equian's File No.: 688798-111816 Attn: Stephen Snabb Petitioner. agrees to endorse this check to Equian, LLC.

e. An amount sufficient to purchase the annuity contract described in paragraph of the Stipulation, paid to the life insurance company from which the annuity will be purchased (the "Life Insurance Company").

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.4

IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

AMY WYLLIS, next friend of ) ECF

R.S., a minor, ) )

Petitione·r, )

V. ) No. 11-764V Special Master SECRETARY OF HEAL TH ) Thomas L. Gowen AND HUMAN SERVICES, ) )

Respondent. )

STIPULATION

The parties hereby stipulate to the following matters: I. Amy Wyllis ("petitioner") 1 on behalf of her minor daughter R.S., filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-I0 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to R.S. 's receipt of the influenza ("flu") v�ccine, which vaccine· is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a).

2. R.S. received the flu vaccine on or about October 5, 2010.

3. The vaccine was a�ministered within the United States.

4. Petitioner alleges that R.S. suffered from Guillain-Barre Syndrome ("GBS") and/or· chronic inflammatory demyelinating polyneuropathy ("CIDP"), which were caused by the flu vaccine. Petitioner further alleges that R.S. suffered the residual effects of her injuries for more than six months.

5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on behalf of R.S. as a result of her condition.

6. Respondent denies that the vaccine causedR.S. to suffer from GBS, CIDP, or any other injury, and further denies that R.S.'s current disabilities are sequelae of a vaccine-related injury.

7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between: them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation. \

8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21( a){l), the Secretary of Health and Human Services will issue the following vaccine compensation payments: . . a. A lump sum of$274,621.62, which amount represents compensation for first year life care expenses ($24,621.62) and pain and suffering ($250,000.00), in the form of a check payable to petitioner as guardian/conservator of the estate of R.S. for the benefit ofR.S. No payments shall be made until petitioner provides respondent with documentation establishing that she has been appointed as the guardian/conservator of R.S.' s estate; b. A lump sum of$10,237.17, which amount represents reimbursement of a State of Michigan lien for services rendered on behalf of R.S., in the fonn of a check payable jointly to petitioner and the State of Michigan, and mailed to: Michigan Department of Health and Human Services Third Party Liability Division P.O. Box 30053

Lansing, MI 48909

Medicaid ID#: 0037191527

Attn:Roxanne Schafer

Petitioner agrees to endorse this check to the State of Michigan.

c. A lump sum of$13,420.45, which amount represents reimbursement of a Meridian Health Plan, a Medicaid plan, lien for services rendered on behalf of R.$., in the form of a check payable jointly to petitioner and

Equian, LLC

P.O. Box 32140

Louisville, KY 40232-2140

Equian's File No.: 600919-110515 Attn: Stephen Snabb

Petitioner agrees to endorse this check to Equian, LLC.

d. A lump sum of $1,712.98, which amount represents reimbursement of a Midwest Health Plan, a Medicaid plan, lien for services rendered on behalf of R.S.• in the form of a check payable jointly to petitioner and

Equian, LLC

P.O. Box 32140

Louisville, KY 40232-2140

Equian's File No.: 688798-111816 Attn: Stephen Snabb

Petitioner. agrees to endorse this check to Equian, LLC.

e. An amount sufficient to purchase the annuity contract described in paragraph 10 below, paid to the life insurance company from which the annuity will be purchased (the "Life Insurance Company").

9. The Life Insurance Company must have a minimum of $250,000,000.00 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from two of the following rating organizations: a. A.M. Best Company: A++, A+, A+�, A+p, A+r, or A+s; b. Moody's Investor Service Claims Paying Rating: Aa3. Aa2, Aal , or Aaa; c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or AAA; d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA, AA+, or AAA.

I 0. The Secretary of Health and Human Services agrees to purchase an annuity contract from the Life Insurance Company for the benefit of R.S., pursuant to which the Life Insurance Company will agree to make payments periodically to petitioner, as the court-appointed