Albers v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: March 12, 2020 * * * * * * * * * * * * * MARGARET ALBERS, * UNPUBLISHED * Petitioner, * No. 16-1715V * v. * Special Master Gowen * SECRETARY OF HEALTH * Tetanus-diphtheria-acellular AND HUMAN SERVICES, * pertussis (“Tdap”); Seizure * Disorder.

Respondent. * * * * * * * * * * * * * * Brian L. Cinelli, Marcus & Cinelli, LLP, Williamsville, NY, for petitioner.

Linda S. Renzi, United States Department of Justice, Washington, DC, for respondent.

DECISION ON STIPULATION1 On December 29, 2016, Margaret Albers (“petitioner”) filed a petition for compensation within the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleged that as a result of receiving a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine on December 30, 2013, she developed a seizure disorder with residual effects that persisted for more than six months. Id. On March 12, 2020, respondent filed a stipulation providing that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 63). Respondent denies that the Tdap vaccine caused petitioner to suffer from a seizure disorder or any other injury or her current condition. Id. at ¶ 6. Maintaining their respective positions, the parties nevertheless now Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of Federal Claims. The Court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion 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 opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the Court’s website without any changes. 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. agree that the issues between them shall be settled and that a decision should be entered awarding compensation according to the terms of the stipulation attached hereto as Appendix A.

Id. at ¶ 7.

The stipulation awards: 1) A lump sum of $207,230.11, which amount represents compensation for first- year life care expenses ($32,197.52), pain and suffering ($160,000.00), and past unreimbursable expenses ($15,032.59), in the form of a check payable to petitioner; 2) A lump sum of $11,089.38, which amount represents reimbursement of a New York State Medicaid lien for services rendered on behalf of petitioner, in the form of a check payable jointly to petitioner and New York Department of Health, and mailed to: New York State Department of Health P.O. Box 415874 Boston, MA 02241-5874 Recovery Case #: 197765 ATTN: Charla Harrigan Petitioner agrees to endorse this payment to New York State Department of Health; and 3) 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”).

These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). I adopt the stipulation as the decision of the Court and hereby award compensation in the amount and on the terms set forth therein. Accordingly, the Clerk of 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

Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a).