Purcell v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-231V

NANCY PURCELL, Chief Special Master Corcoran Petitioner, Filed: August 15, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Edward Kraus, Kraus Law Group, LLC, Chicago, IL, for Petitioner.

Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On March 1, 2022, Nancy Purcell filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered from Guillain-Barré syndrome (“GBS”) after receiving an influenza vaccination on September 20, 2019. Petition at 1; Stipulation, filed at August 14, 2024, ¶¶ 2-4. Petitioner further alleges she experienced the residual effects of this condition for more than six months and that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her alleged injury.

Stipulation at ¶¶ 4-5. “Respondent denies that petitioner sustained a Table injury for GBS; denies that the vaccine caused petitioner’s alleged GBS or any other injury; and denies that her current condition is a sequela of a vaccine-related injury ” Stipulation at ¶ 6.

Nevertheless, on August 14, 2024, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein.

Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $180,000.00 in the form of a check payable to Petitioner.

Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under Section 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court is directed to enter judgment in accordance with this decision.3 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 MASTEJRS ) NANCY PURCELL, ) ) Petitioner, ) ) No. 22-23 1V V. ) Chi ef Special Master Corcorar ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVI CES, ) ) Respondent. ) _ __ __ _ _ _ _ _ _) STIPULATION The parties hereby stipul ate to the fo ll owin g matters: 1. Nancy Purcell ("petitioner"), filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program , 42 U. S.C. § 300aa- 10 to 34 (the "Vaccin e Program"). The petition seeks compensation for injuries allegedly related to petitioner's rece ipt of an influenza ("flu ") vaccine, which vaccine is contained in the Vaccine Injury Tabl e (the "Table"), 42 C.F. R. § 100.3(a).

2. Petitioner receiv ed a flu vaccine on September 20, 2019.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she suffered from Guillain-Barre Syndrom e ("G BS") that was caused by the flu vaccine. She further alleges that she experienced th e res idual effects of thi s condition for more than six months.

5. Petitioner represents th at there has been no prior awa rd or settlement of a civi I act ion for damages on her behalf as a res ult of her alleged inj ury.

6. Respondent denies that petitioner sustained a Table injury for GBS ; denies that the vaccine caused petitioner's alleged GBS or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.

7. Maintaining their above-stated positions, the patties nevertheless now agree that the issues between them shall be settled and that a decision should b1::: 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 Stipu lation , and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(I), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $180,000.00 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-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)( I), 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.

I 0. Petitioner and her 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- I 5(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 basi s.

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 avai labi Iity of sufficient statutory funds.

12. The pa1iies and their attorneys further agree and stipulate that, except for any award for attorney's 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 her individual capacity, and on behalf of her heirs, executors, administrators, successors or ass igns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and al I 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 September 20, 2019, as identified in a petition for vaccine compensation filed on or about March I, 2022, in the United States Court of Federal Claims as petition No. 22-23 IV .

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 pmiies.

15. 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.

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/o r 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 disabilities, or that petitioner suffered an injury contained in the Vaccine Injury Table.

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 .

PETITIO'iER:

ATTOR..'\' EY OF RECORD FOR AUTHORIZED REPRESENT...\ TIVE PETlTlO'.'\ER: OF THE ATTORNEY GENERAL:

-/4N?cW..A.A \J.. 9 ~ EDWA RD KRAUS HEA THER L. PEARLiVlA N l(raus Law Group. LLC Deputy Director V-./. Jackson Bl vd Torts Branch Su ite ! 700 Civil Division Chicago . JL 60604 L .S . Department of.Justice (312) 858 -2 177 P.O. Box 146 ck rn us r~c kraus 1a\vyers. com Benjam in Frankl in Station Wash ington . DC 20044-0 J 46 Al'THORIZED REPRESE:XTA Tl\'E ATTOR:\EY OF RECORD FOR OF THE SECRETARY OF HEAL TH RESPO:XDENT: Al'iD HF\L.\.:\' SERVICES: Digitally ,ignerl by Jeffrey Jeffrey S. S.Beach-5 Beach-S Da te2024.08.021120!7 - - - - -- -04'00' _fu_r CAPT GEORGE REED GRHvfES. :vm. MPH Directo r. Di\ision of Injury Compcnsation Programs Health Systems Bureau Civil Division Health Resources mid Sen ices U. S. Department of Justi ce Admini strat ion P.O. Box 146 CS Department of Health Benjamin Frankl in Station and Humans Scn·ices \Vash ington . DC 20044-0146 5(10() Fishers La ne . 08W-25A ( 202) 6 l 6-4264 Rochillc. MD 20857 mcghan .r. murp hy(£'1, uscloj .go\·

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