Knox v. Secretary of Health and Human Services
Opinion
In the Anited States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-67V (not to be published) 2k 2K ok 2k ok 2k ok 2k ok ok ok ok ok ak ok ok ok ok ok ok ok ok ok ok Ok * KARLA KNOX, : * Filed: December 28, 2021 Petitioner, * * * v. * Decision by Stipulation; Damages; * Influenza (“Flu”) Vaccine; Transverse SECRETARY OF HEALTH AND : Myelitis (“TM”).
HUMAN SERVICES, Ce * Respondent. * * * 2h 2K Ok Ok ok ok ok ok OK OK ok ok ok Ok Ok OK OK OK OK OK Ok OK OK OK OK Ronald Homer, Conway Homer, P.C., Boston, MA, for Petitioner Lynn Schlie, U.S. Department of Justice, Washington, DC, for Respondent DECISION ON JOINT STIPULATION!
On January 22, 2020, Karla Knox (“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 transverse myelitis (“TM”) as a result of the influenza (“flu”) vaccination she received on March 13, 2018. See Stipulation { 2, 4, dated December 28, 2021 (ECF No. 39); see also Petition.
Respondent denies “that Petitioner developed TM following the flu vaccination and further
' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012).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
Ihave 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 $97,927.38 in the form of a check payable to petitioner.
Stipulation J 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 ISSO ORDERED. s/ Katherine E. Oler Katherine E. Oler Special Master
> 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
) KARLA KNOX, ) ) Petitioner, ) No. 20-067V ) Special Master Oler v. ) ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ) STIPULATION The parties hereby stipulate to the following matters: 1. Petitioner, Karla Knox, 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 injuries allegedly related to petitioner’s receipt of the influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received the flu vaccine on March 13, 2018.
3. The vaccine was administered within the United States.
4. The petition alleges that petitioner suffers from transverse myelitis (“TM”) asa result of receiving the flu vaccine, and that petitioner experienced the residual effects of this injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action for damages arising out of the alleged vaccine injury.
6. Respondent denies that petitioner developed TM following the flu vaccination, and -l- further denies that the flu vaccine caused petitioner to suffer TM or any other injury or petitioner's current condition.
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. Assoon as practicable after anentry 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 the following vaccine compensation payment: A lump sum of $97,927.38 in the form of a check payable to petitioner. This amount 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 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 any proceeding upon this petition.
10. Petitioner and petitioner’s attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be expected to be made under any 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 by entities that provide health services on a pre-paid basis, and represent that they have identified to respondent all known sources of payment for items or -2- services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g).
11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds.
12, The parties and their attorneys further agrce and stipulate that, except for any award for attorneys’ fees and litigation costs, and past unreimbursable 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 paragraphs 8 and 9, petitioner, in petitioner’s individual capacity, and on behalf of petitioner’s 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 United States 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 vaccination as alleged by petitioner in a petition for vaccine compensation filed on or about January 22, 2020, in the United States Court of Federal Claims as petition No. 20-067V.
14. If petitioner should die prior to entry of judgment, this agreement shall be -3- 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 as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or to 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 injury or any other injury or petitioner’s current condition.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION Respectfully submitted,
PETITIONER: KARLA KNOX ATTORNEY OF RECORD FOR PE Nel a (CS e— Attorncy Petitioner Conway Homer. P.C.
16 Shawmut Street Boston, MD 02116 Tek 617-695-1990 Fax: 617-695-0880 Email rhonier a cedGn cop) AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES:
Dale Wleshlar, ONSe, APRM, far TAMARA OVERBY < Acting Director, Division of Injury Compensation Programs Health Systems Bureau Health Resources and Services Administration U.S. Department of Health and Human Services 5600 Fishers Lane, 08N146B Rockville, MD 20857 AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL: IAI ——— HEATHER L. PEARLMAN Deputy Director Torts Branch Civil Division U.S. Department of Juste P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 ATTORNEY OF RECORD FOR RESPONDENT: Lay C. Scpbee tn Nlecothes | Peet LYNN vs SCHLIE - Trial Attorney Torts Branch Civil Division U.S. Department of Juste P.O. Box 146 Benjamin Franklin Station Washington. DC 20044-0146 Tel: 202-616-3667 Email: i von Scaliow uses zen
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