Jones v. Secretary of Health and Human Services

In the Anited States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-1466V (not to be published)

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MARY ANN JONES, : * Filed: June 16, 2021

Petitioner, * * *

V. * Decision by Stipulation; Damages; * Influenza (“Flu”) Vaccine; Guillain-Barré

SECRETARY OF HEALTH AND : syndrome (“GBS”).

HUMAN SERVICES, e *

Respondent. * * *

2h 2K Ok ok ok ok ok ok Ok OK ok ok ok ok ok ok KOO Ok ok Ok KOK OOK Diane Stadelnikas, Maglio Christopher & Toale, Sarasota, FL, for Petitioner Laurie Wiesner, U.S. Department of Justice, Washington, DC, for Respondent DECISION ON JOINT STIPULATION!

On September 24, 2019, Mary Ann Jones (“Petitioner”) filed a petition, seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program’).” Pet., ECF No. 1. Petitioner alleges she suffered from Guillain-Barré syndrome (“GBS”) as a result of the influenza (“flu”) vaccination she received on October 4, 2017. See Stipulation J 2, 4, dated June 16, 2021 (ECF No. 34); see also Petition.

Respondent denies “that petitioner sustained GBS as defined in the Vaccine Injury Table;

' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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). Otherwise, the Decision in its present form will be available. Jd. * The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa. denies that the vaccine caused petitioner’s alleged GBS, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury.” See Stipulation { 6. Nonetheless, both parties, while maintaining their above-stated positions, agreed in a stipulation filed June 16, 2021 that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation.

I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The stipulation awards: a lump sum of $150,000.00 in the form of a check payable to [P]etitioner.

Stipulation { 8. This award represents compensation for all damages that would be available under U.S.C. § 300aa-15(a).

I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter judgment herewith.?

IT IS SO ORDERED. s/ Katherine E. Oler

Katherine E. Oler

Special Master

3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their right to seek review.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

MARY ANN JONES,

Petitioner, No. 19-1466V

Special Master Oler v. ECF

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

STIPULATION

The parties hereby stipulate to the following matters:

1. Mary Ann Jones (“petitioner”) filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (the “Vaccine Program’). The petition seeks compensation for an injury allegedly related to petitioner’s receipt of an influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the ““Table”), 42 C.F.R. § 100.3(a).

2. On October 4, 2017, petitioner received a flu vaccine.

3. The vaccine was administered in the United States.

4. Petitioner alleges that she sustained Guillain Barre Syndrome (“GBS”) within the time period set forth in the Table. She further alleges that she experienced the residual effects of this condition for more than six months.

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

6. Respondent denies that petitioner sustained GBS as defined in the Vaccine Injury lof 5 Table; denies that the vaccine caused petitioner’s alleged GBS, or any other injury; and denies that her current condition is a 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)(1), the Secretary of Health and Human Services will issue a lump sum of $150,000.00 in the form of a check payable to petitioner. This lump sum represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

9. As soon as practicable after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(1) and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys’ fees and costs incurred in proceeding upon this petition.

10. Petitioner and her attorney represent that they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), including State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or entities that provide health services on a pre-paid basis.

11. | Payment made pursuant to paragraph 8 of this Stipulation, and any amount awarded pursuant to paragraph 9, will be made in accordance with 42 U.S.C. § 300aa-1 5(i), subject to the availability of sufficient statutory funds.

12. The parties and their attorneys further agree and stipulate that, except for any of 5 award for attorneys’ fees and litigation costs, and past unreimbursed expenses, the money provided 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-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h).

13. _In return for the payments described in paragraph 8, and any amount awarded pursuant to paragraph 9, petitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors, or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from the vaccine administered on October 4, 2017, as alleged in a Petition filed on September 24, 2019, in the United States Court of Federal Claims as petition No. 19-1466V.

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

15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the United States Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties’ settlement and this Stipulation shall be voidable at the sole discretion of either party.

16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except of 5 as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties’ respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement.

17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the flu vaccine caused petitioner’s alleged GBS, or any other injury or her current condition.

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

END OF STIPULATION

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Respectfully submitted,

PETITIONER:

MARY ae ea

ATTORNEY OF RECORD FOR

PETITIONER:

A SEADELNIKAS, ESO

Maglio Christopher & Toale, P.A.

1605 Main St, Suite 710

Sarasota, FL 34236 (888) 952-5242 [email protected]

AUTHORIZED REPRESENTATIVE

OF THE SECRETARY OF HEALTH

AND HUMAN SERVICES:

Dale Wushler, ONSc, WS, APE, fr

TAMARA OVERBY

Acting Director, Division of Injury

Compensation Programs

Healthcare Systems Bureau

Health Resources and Services

Administration

U.S. Department of Health and Human Services

5600 Fishers Lane, 08N146B

Rockville, MD 20857

Dated: OGIS/Zo2_)

Sof

AUTHORIZED REPRESENTATIVE

OF THE ATTORNEY GENERAL: dA 2 oben Peon Qin

HEATHER L, PEARLMAN

Acting Deputy Director

Torts Branch

Civil Division

U.S. Department of Justice

P.O, Box 146

Benjamin Franklin Station

Washington, DC 20044-0146

ATTORNEY OF RECORD FOR

RESPONDENT:

Cour Wiener be RY SAW ( Dea s//~

LAURIE WIESNER

Trial Attorney

Torts Branch

Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, DC 20044-0146

202-305-0253 laurie. [email protected]