Bratcher v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-369V

ALEX BRATCHER, JR., Chief Special Master Corcoran Petitioner, Filed: July 19, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Emily Beth Ashe, Anapol Weiss, Philadelphia, PA, for Petitioner.

Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1 On March 31, 2022, Alex Bratcher, Jr., 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 he suffered from Guillain-Barre Syndrome (“GBS”) as a result of an influenza (“flu”) vaccine administered on September 2, 2020. Petition at 1; Stipulation, filed at February 9, 2024, ¶¶ 1, 4. Petitioner further alleges that the vaccine was administered within the United States, that he sustained an injury within the time period set forth in the Vaccine Injury Table, that he experienced the residual effects of his condition for more than six months, and that there has been no prior award or settlement of a civil action for damages on his behalf as a result of his alleged injury. Petition at 1, 11; Stipulation at ¶¶ 3-5. Respondent denies that Petitioner sustained a GBS Table injury; denies that the flu vaccine caused Petitioner’s alleged GBS, or any other injury; and denies that his current condition is a sequela of a vaccine-related injury. Stipulation at ¶ 6.

Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access.

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018).

Nevertheless, on February 9, 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 $110,000.00 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

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.

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

A L E X BRATCIIER, JR., Petitioner, V. No. 22-369V Chief Special Master Corcoran SECRETARY OF HEALTH A N D ECF HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: 1. Petitioner, Alex Bratcher, Jr., filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 ("Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt o f the influenza ("flu") vaccine, which is contained in the Vaccine Injury Table ("Table"), 42 C.F.R. § l 00.3(a).

2. Petitioner received the flu vaccine on or about September 2, 2020.

3. The vaccine was administered within the United States.

4. Petitioner alleges that he sustained Guillain-Barre Syndrome ("GDS") within the time period set forth in the Table, or in the alternative, that his alleged inj ry was caused-in-fact by the flu vaccine. He further alleges that he experienced the residual effects of this condition for more than six months.

5. Petitioner represents that there has been no prior award or settlement o f a civil action for damages as a result o f his condition.

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

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 enlry o f judgment reflecting a decision consistent with the tenns of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(a)(l ), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $110,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 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-2 l (a)(l) 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.

I0. Petitioner and his attorney represent that they have identified to respondent all known sources of payment for items or services for which the Vaccine Program is not primarily liable under 42 U.S.C. § 300aa- l 5(g), including State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act), 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-l 5(i) and 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 unreimbursabJe 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 payment described in paragraph 8, and any amount awarded pursuant to paragraph 9, 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 al1 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 Vaccine Program 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 vaccine administereq on or about September 2, 2020, as alleged by petitioner in a petition for vaccine compensation filed on or about March 31, 2022, in the United States Court of Federal Claims as petition No. 22-369V.

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

15. lfthc special master fails to issue a decision in complete confonnity with the terms of this Stipulation, or i f the Court of Fcdcral Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this St pulation, 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 an<l 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, 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 constrned 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 condition, or that petitioner suffered an injury contained in the Vaccine lnjury Table.

18. AH rights and obligations of petitioner hereunder sha11 apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

Respectfully submitted, PETITIONER:

ll -r A L E X B T C H E R , JR. -= c½.

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

EM ESQ. ,HEATHER MR WVV' S?

L. PEARLMAN ANAPOL WEISS Deputy Director One Logan Square Torts Branch N. 18th Street, Suite 1600 Civil Division Philadelphia, PA 19103 U.S. Department of Justice [email protected] P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR

::.v OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: George R. DlgitallysignedbyGeo,geR.

Grimes -s 14 Grimes •S14 Date; 2024.01.0912:24:46·05'00'

CDR GEORGE REED GRJMES, MD, MPH LANGEL Director, Division of Injury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Depa1tment of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, D.C. 20044-0146 5600 Fishers Lane, 08W-25A fel icia. d. [email protected] Rockville, MD 20857

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