Bacon v. Secretary of Health and Human Services

Sn the Guited States Court of Federal Claims OFFICE OF SPECIAL MASTERS

No. 19-0416V UNPUBLISHED GREGORY BACON, Chief Special Master Corcoran Petitioner, Filed: July 12, 2022 V. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Joint HUMAN SERVICES, Stipulation After Entitlement Determined for Petitioner; Influenza Respondent. (Flu) Vaccine; Guillain-Barre Syndrome (GBS)

Curtis R. Webb, Curtis R. Webb, Attorney at Law, Monmouth, OR, for Petitioner.

Naseem Kourosh, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES' On March 19, 2019, Gregory Bacon filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seqg.* (the “Vaccine Act”). Petitioner alleges that he suffered Guillain-Barré Syndrome (“GBS”) after receiving the influenza vaccine on January 18, 2013. Petition at (§ 1-3. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On September 9, 2020, | issued a ruling on entitlement, finding Petitioner entitled to compensation for his GBS. On July 11, 2022, the parties filed the attached joint

If, upon review, | agree that the identified material fits within this definition, | will redact such material from public access.

Pursuant to the terms stated in the attached Stipulation, | award Petitioner a lump sum payment of $127,500.00 in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a).

The Clerk of Court is directed to enter judgment in accordance with this decision.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

GREGORY BACON, Petitioner, No. 19-416V (ECF) v. Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: 1. Gregory Bacon, petitioner, filed a petition on for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (the “Vaccine Program”). The petition seeks compensation for injuries allegedly related to petitioner’s receipt of the influenza vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).

2. Petitioner received the influenza vaccine on January 18, 2013.

3. The vaccination was administered within the United States.

4. Petitioner alleges that he suffered Guillain-Barré Syndrome (“GBS”) within the time period set forth in the Table following administration of the influenza vaccine. Petitioner further alleges that he experienced the residual effects of his GBS for more than six months.

5. There is not a preponderance of the evidence demonstrating that petitioner's GBS and its residual effects were due to a factor unrelated to his January 18, 2013 flu vaccine.

6. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of his GBS and residual effects.

7. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine Program for his GBS. Therefore, 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 the following vaccine compensation payment: A lump sum of $127,500.00 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- 1 5(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 Chief Special Master to award reasonable attorneys’ fees and costs incurred in 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.

11. Payment made pursuant to paragraph 8 of this Stipulation 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 agree 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 petitioner’s benefit 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 his individual capacity, and on behalf of his 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 ef seg., 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 flu vaccination administered on January 18, 2013, as alleged by petitioner in a petition for vaccine compensation filed on or about March 19, 2019, in the United States Court of Federal Claims as petition No. 19-416V.

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 Chief Special Master fails to issue a decision in complete conformity with the terms of this Stipulation or if the 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. All rights and obligations of petitioner hereunder shall apply equally to petitioner and petitioner’s heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION ~ ~~ ~~ ~ ~~ —m ~~ ~~ ™ ™ ™ Respectfully submitted, ~~ A A AZ GREGORWBACON

ATTORNEY OF RECORD FOR PETITIONER: i Co4| fj CURTIS R. WEBB © P.O. Box 429 Monmouth, OR 97361 Telephone: (541) 231-8971 Email: [email protected]

» AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH, AND HUMAN SERVICES: George R. Grimes - Diglaly signed by George R, $14 . Date 3022.06.13 12:44:22 -04'00'

CDR GEORGE REED GRIMES, MD, MPH 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 Dated: ] /8 [xoxn.

AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL: Mo dete ea HEATHER L. PEARLMAN 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:

Trial Attorney Torts Branch Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 Telephone: (202) 305-1159 Email: [email protected]