Mills v. Secretary of Health and Human Services

Sn the Gunited States Court of Federal Claing OFFICE OF SPECIAL MASTERS Filed: June 30, 2022 * * * * * * * * * * * * * STEVEN S. MILLS, as * personal representative of the * Unpublished Estate of Meri E. Boatman, * * Petitioner, * No. 17-1922V * V. * Special Master Gowen * SECRETARY OF HEALTH * Decision on Stipulation; AND HUMAN SERVICES, * Guillain Barré Syndrome (“GBS”); * Influenza (“flu”).

Respondent. * * * * * * * * * * * * * * Leah V. Durant, Law Offices of Leah V. Durant, Washington, D.C., for petition.

Andrew Henning, U.S. Dept. of Justice, Washington, D.C., for respondent.

DECISION ON STIPULATION!

On December 11, 2017, Steven S. Mills, as personal representative of the Estate of Meri E. Boatman (“petitioner”), filed a petition for compensation under the National Vaccine Injury Program.” Petition (ECF No. 1). Petitioner alleges that as a result of Ms. Meri Boatman receiving an influenza (“flu”) vaccine on November 5, 2016, she suffered from Guillain-Barré syndrome (“GBS”) and passed away as a result of her vaccine related injury. /d.; Stipulation (ECF No. 70).

' 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 am required 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. This means the opinion will be available to anyone with access to the Internet. 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 decision.” /d. If neither party files a motion for redaction within 14 days, the opinion will be posted on the court’s website without any changes. /d.

2 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.

On June 30, 2022, respondent filed a stipulation providing that a decision should be entered awarding compensation to petitioner. Stipulation. Respondent denies that the flu vaccine is the cause of Ms. Boatman’s GBS or her death. /d. at { 6. Nevertheless, maintaining their respective positions, the parties now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation according to the terms of the stipulation attached hereto as Appendix A. /d. at] 7.

The stipulation provides: a) A lump sum of $40,000.00 in the form of a check payable to petitioner as legal representative of the Estate of Meri E. Boatman. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa- 15(a).

Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the stipulation and this decision.* IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master

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

THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

STEVEN S. MILLS, as Personal Representative of the Estate of MERI E.

BOATMAN, Petitioner, Case No. 17-1922V (ECF) Special Master Gowen V. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: 1. Steven S. Mills (“petitioner”), as the Personal Representative of the Estate of Meri E. Boatman (“Ms. Boatman”), deceased, 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 and death allegedly related to Ms. Boatman’s receipt of an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. 100.3(a).

2. Ms. Boatman received the flu vaccine on or about November 5, 2016.

3. The vaccine was administered within the United States.

4. Petitioner alleges that as a result of receiving the flu vaccine, Ms. Boatman suffered Guillain-Barré Syndrome (“GBS”). Ms. Boatman passed away on December 29, 2016.

Petitioner further alleges that Ms. Boatman’s death was the sequela of her alleged vaccine- related injury.

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

6. Respondent denies that the flu vaccine caused Ms. Boatman’s alleged GBS, any other injury, or her death.

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 the following vaccine compensation payment: A lump sum of $40,000.00 in the form of a check payable to petitioner as legal representative of the Estate of Meri E. Boatman. 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 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 his 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-15(i), subject to the availability of sufficient statutory funds.

12. Petitioner represents that he presently is, or within 90 days of the date of judgment will become, duly authorized to serve as legal representative of the Estate of Meri E Boatman under the laws of the State of Missouri. No payments pursuant to this Stipulation shall be made until petitioner provides the Secretary with documentation establishing his appointment as legal representative of the Estate of Meri E. Boatman. If petitioner is not authorized by a court of competent jurisdiction to serve as legal representative of the Estate of Meri E. Boatman at the time a payment pursuant to this Stipulation is to be made, any such payment shall be paid to the party or parties appointed by a court of competent jurisdiction to serve as legal representative of the Estate of Meri E. Boatman upon submission of written documentation of such appointment to the Secretary.

13. In return for the payments described in paragraph 8, and any amount awarded pursuant to paragraph 9, petitioner, in his individual capacity, and as the Personal Representative of the Estate of Meri E. Boatman, on behalf of Ms. Boatman’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 Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300 aa-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 Ms. Boatman resulting from, or alleged to have resulted from, the flu vaccine administered on or about November 5, 2016, as alleged in a Petition filed on December 11, 2017, in the United States Court of Federal Claims as petition No. 17-1922V.

14. 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.

15. 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 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.

16. 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 Ms. Boatman’s alleged GBS, any other injury, or her death.

17. All rights and obligations of petitioner in his capacity as the Personal Representative of the Estate of Meri E. Boatman shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION Respectfully submitted, PETITIONER: he ge eo “STEVEN S. MILLS ATTORNEY OF RECORD FOR PETITIONER: thy KY — LEAH V. DRANK \ Attorney for Petitioner Law Offices of Leah HH. Durant 1717 K Street, NW Suite 900 Washington, DC 20006 Tel.: (202) 775-9200 Email: [email protected] AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES: Digitally signed by George George R, R.Grimes 514 G ri mes -S 1 4 “a 13:54:26

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 Lance. 08N146B Rockville, MD 20857 Dated:

AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL: 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:

U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 Tel.: (202) 616-4405 Limail: [email protected]