Gudaitis v. Secretary of Health and Human Services

Sn the Guited States Court of Federal Clanns OFFICE OF SPECIAL MASTERS Filed: July 25, 2022 AND HUMAN SERVICES, (“Flu”); Optic Neuritis; Multiple Sclerosis (“MS”); Significant Aggravation. * * * * * * * * * * * * * JAMES GUDAITIS * ** UNPUBLISHED * Petitioners, * No. 17-1570V * V. * Special Master Gowen * SECRETARY OF HEALTH * Stipulation for Award; Influenza * * * Respondent. %* %* %* %* %* %* %* %* %* %* %* %* %* Michael Firestone, Marvin Firestone, MD, JD and Associates, San Mateo, CA, for petitioner.

Ryan Pyles, Department of Justice, Washington, D.C., for respondent.

DECISION FOR STIPULATION?

On October 19, 2017, James Gudaitis (“petitioner”) filed a petition for compensation under the National Vaccine Injury Program.? Petitioner alleged that as a result of receiving the Influenza (“flu”) vaccination on October 21, 2014, he developed optic neuritis and multiple sclerosis or “caused a significant aggravation of a preexisting neurological condition,” and that he experienced residual effects of this injury for more than six months.

On July 25, 2022, respondent filed a stipulation providing that a decision should be entered awarding compensation to petitioner. Stipulation (“Stip.”) (ECF No. 111). Respondent denies that the Flu vaccine caused petitioner’s alleged optic neuritis, multiple sclerosis, and/or any other injury. /d. at § 6. Respondent further denies that the vaccination significantly

' Pursuantto 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, 1 am required to postit on the website of the United States Courtof FederalClaims. The court’s website is at http://www.uscfc.uscourts.gov/agere gator/sources/7. Thismeans the opinion willbe available to anyone with access to the Internet. Before the opinionis posted on thecourt’s website, each party has 14 days to file a motion requesting redaction“of any mformation furnished by that party: (1) that isa 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 mustprovide 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. Jd. * 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, codifiedas amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act orthe Act). All citations in this decision to individual sections of the Vaccine Act are to 42U.S.C.A. § 300aa. aggravated any alleged neurological or other condition. /d. 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 to the petitioner according to the terms of the stipulation attached hereto as Appendix A. Jd. at 7.

The stipulation provides: a. 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”); b. A lump sum payment of $1,723.20, representing compensation for satisfaction of a State of California Medicaid lien, payable jointly to petitioner and: Department of Health Care Services Recovery Branch— MS 4720 P.O. Box 997421 Sacramento, CA 95899-7421 Petitioner agrees to endorse this payment to the Department of Health Care Services; and c. A lump sum of $120,000.00 in the form of a check payable to petitioner. This amount represents all remaining compensation for damages that would be available under 42 U.S.C. §§ 300aa-15(a).

I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. The Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation. 3 IT ISSO 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 ll).

THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

JAMES GUDAITIS, Petitioner, V. to No. 17-1570V wl, 8 " Special Master Thomas L. Gowen SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: 1. James Gudaitis (“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 injuries allegedly related to petitioner’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. Petitioner received a flu vaccine on or about October 21, 2014.

3, The dadelte was administered within the United States.

4, Petitioner alleges that the flu vaccine either caused him to develop optic neuritis and multiple sclerosis or “caused a significant aggravation of a preexisting neurological condition,” and that he experienced residual effects of fits injury 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 his condition.

6. Respondent denies that the flu immunization is the cause of petitioner’s alleged optic ‘ neuritis, multiple sclerosis, and/or any other injury. Respondent further denies that vaccination significantly aggravated any alleged neurological or other 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. 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 payments: a. An amount sufficient to purchase the annuity contract described in paragraph 10 below, paid to the life insurance company from which the annuity will be purchased (the “Life Insurance Company”);! b. A lump sum payment of $1,723.20,” representing compensation for satisfaction of a State of California Medicaid lien, payable jointly to petitioner and: Department of Health Care Services Recovery Branch - MS 4720 P.O. Box 997421 Sacramento, CA 95899-7421.

Petitioner agrees to endorse this payment to the Department of Health Care Services; and

' Notwithstanding references herein to “the Life Insurance Company” or “the annuity contract,” to satisfy the conditions set forth herein, in respondent’s sole and absolute discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies. ? This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of California may have against any individual as a result of any Medicaid payments made by, or on behalf of, the State of California to, or on behalf of, James Gudaitis as a result of his alleged vaccine-related injury suffered as a result of his October 21, 2014 flu vaccination, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h). c. A lump sum of $120,000.00 in the form of a check payable to petitioner. This amount represents all remaining compensation for damages that would be available under 42 U.S.C. § 300aa-15(a).

9. The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from two of the following rating organizations: a. b.

A.M. Best Company: A++, A+, At+g, At+p, At+r, or Ats; Moody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aal, or Aaa; Standard and Poor’s Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or AAA; Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA, AA+, or AAA.

10. The Secretary of Health and Human Services agrees to purchase an annuity contract from the Life Insurance Company for the benefit of petitioner, pursuant to which the Life Insurance Company will agree to make payments periodically to petitioner for the following items of compensation: For future medical expenses, beginning on the anniversary of the date of judgment in year 2030, an annual amount of $5,000.00 to be paid up to the anniversary of the date of judgment in year 2044, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment.

At the sole discretion of the Secretary of Health and Human Services, the periodic payments may be provided to petitioner in monthly, quarterly, annual or other installments. The “annual amounts” set forth above describe only the total yearly sum to be paid to petitioner and do not require that the payment be made in one annual installment. Petitioner will continue to receive the annuity payments from the Life Insurance Company only so long as petitioner is alive at the time that a particular payment is due. Written notice to the Secretary of Health and Case 1:17-vv-01570-UNJ Document111 Filed 07/25/22 Page 4of7 Human Services and the Life Insurance Company shall be provided within twenty (20) days of nelitioner’s death. | 11. The annuity contract will be owned solely and exclusively by the secre of Health and Human Services and will be purchased as soon as practicable following the entry of a judgment in conformity with this Stipulation. The parties stipulate and agree that the Secretary of Health and Human Services and the United States of America are not responsible for the payment of any sums other than the amounts set forth in paragraph 8 herein, and that they do not guarantee or insure any of the future annuity payments. Upon the purchase of the annuity contract, the Secretary of Health and Human Services and the United States of America are released from any and all obligations with respect to future annuity payments.

12. 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 proceeding upon this petition.

13. 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.

14. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 12 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds.

15. 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 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).

16. In return for the payments described in paragraphs 8 and 12, petitioner, in his individual capacity and on behalf of his heirs, executors, administrators, successors and/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 flu vaccination administered on or about October 21, 2014, as alleged by petitioner in a petition for vaccine compensation filed on or about October 19, 2017, in the United States Court of Federal Claims as petition No. 17- 1570V.

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

18. If the 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.

19. 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 12 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.

20. Petitioner hereby authorizes respondent to disclose documents filed by petitioner in this case consistent with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of Records, No. 09-15-0056.

21. 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 and/or significantly aggravated petitioner’s alleged optic neuritis, multiple sclerosis, and/or any other injury.

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

END OF STIPULATION ~~~ oan" ~~ iO

Respectfully submitted, PETITIONER: ATTORNEY OF RECORD FOR PETITIONER: We D> MICHAEL A. FIRESTONE MARVIN FIRESTONE MD, JD & ASSOCIATES, LLP 1700 South El Camino Real, Suite 408 San Mateo, CA 94402 (650) 212-4900 [email protected] AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES: George R. Grimes Digitally signed by George R. Grimes -S14 -S14 Date: 2022.07.06 14:53:03 -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: ale LS, L022.

AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL: HEATHER L. PE MAN 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: aan 3 °afp- RYAN D. PYLES Senior Trial Attorney Torts Branch Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 (202) 616-9847 [email protected]