Chinnock v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1501V Filed: April 16, 2024

AUDREY CHINNOCK, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jared Rose, Rose Law, Kansas City, MO, for petitioner.

Emilie Williams, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1 On October 30, 2020, petitioner 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 neuromyelitis optica spectrum disorder (“NMOSD”), as a result of her December 6, 2017 influenza (“flu”) vaccination.

Petition at 1; Stipulation, filed April 16, 2024, at ¶¶ 2, 4. Petitioner further alleges that she has experienced the residual effects of her condition for more than six months, that there has been no prior award or settlement of a civil action for damages as a result of her condition, and that her vaccine was administered in the United States. Petition at 1, 3-4; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused or significantly aggravated petitioner’s alleged NMOSD or its residual effects[] and denies that the flu vaccine caused petitioner any other injury or her current condition.”

Stipulation at ¶ 6.

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

Nevertheless, on April 16, 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 the decision of the Court in 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 $175,000.00 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 § 15(a). Id. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3

IT IS SO ORDERED.

s/Daniel T. Horner Daniel T. Horner Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) AUDREY CHINNOCK. ) ) Petitioner. ) ) No. 20- I 50 I V V. ) Special Master Homer ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES. ) ) Respondent. _________________ ) ) STIPULATION The parties hereby stipulate to the following matters: l. Audrey Chinnod:. petitioner. filed a petition for\ accine compensation under the l\arional Vaccine Injury Compensation Program. ➔ 2 U.S.C. ~~ 300aa- IO to - 3 ➔ (the ··\'ac(ine 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. *I00.J(a). " Petitioner received the flu vaccine on December 6.2017.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she suffered neuromeyelitis optica spectrum disorder (.. NMOSD.. ). and further alleges that she experienced the residual effects of her injury for more than six months.

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

6. Respondent denies that the flu vaccine caused or significantly aggravated petitioner"s alleged NMOSD or its residual effects. and denies that the flu vaccine caused petitioner an) other injury or her current condition.

7. Maintaining their above-stated positions. the parties nevertheless now agree that th..: issues bet\\een them shall he settled and that a decision .should be entered awarding the L'nmpensntion described in paragraph 8 of this Stipulation.

8. As soon as practicable atter an entry of judgment reflecting a decision consistent" ith the terms of this Stipulation. and after petitioner has filed an election to receive compensation purswmt to ..Q U.S.C. ~ 300aa-2 I (a)( I). the Secretary of Health and I luman Services ,viii is:-uc 1h1.· lt1ll0\, ing vaccine compensation payment: A lump sum of$ I 75.000.00 in the form ()f. a check payable 10 pl..'litioner. This amount represents compensation for all damages that \\'Ould b..: ,1,ailable under 42 U.S.C. ~ 300aa- I 5(a).

9. ,~\s soon a::. practicable atkr rhe entr) oi'judgment 011 enritk111e111 in this c«se. and ;11'1..:r 1x'titioner has tiled both a proper and timely election to receive compcn~ation pursuant to -12 U .S.C. ~ .,00aa-21 (n )(I). and an application. the parties ,viii submit to further proceeding.s h\.'li,rt-: the spccinl mask'r to ~rnard reasonable att()rt11.'ys· fees and co~b incurred in procecdinµ upnn thi.s petition.

I 0. Petitioner and her attorney represent that compensation to be provided pursuant to chis Stipulation is not for any items or services for which rhe Program is nor primarily liable under 42 U.S.C. ~ 300aa-l 5(g). to the extent that payment has been mack l)r can reasonabl~ be

State health benefits programs (other than ·r itle XIX of the Social Security Act (42 U.S.C. ~ I ..~96 et seq.)). or by entities that pro, ide he<1lth services on a pre-paid basis.

"l I I . 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- I S(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 unreimbursed expenses, the money provided pursuant to this Stipulation ,viii be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-I 5(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 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- l Oet 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 December 6.2017. as alleged by petitioner in a petition for vaccine compensation filed on or about October 30. 2020. in the Lnited States Court of Federal Clai ms as petition \io. 20-150 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 parties.

15. If the special master fails to issue a decision in complete confonnity ,,ith the term s of this Stipulation or i f the Court of Federa l Claims fails to enter judgrnent in conform it: \\ ith a decision thnt is in complete conformity with the terms of this Stipulation. then the parties' S(.'tllement and this Stipulation shall be voidable al the sole discretion or either party.

I 6. This Stipulation expresses a full and complete negotiated settlement of l iabi li t) and darnages claimed under the National Childhood Vaccine lnjur> ,.\ct 01· 1986. as amended. e,c1:.•p1 as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the pnrtks hereto to make any payment or to do nn: act or thing other than is herein expressly .-;tated .111d ck:arl: agreed IP. lhe parties further agre1.' and understand that th1.· ,n, ard described in this Stipu lation may rdlect a 1:ompromise of the partie-:· respect ire position, as to l iabilit: and,or ar111nm1 01· da111ages. and further. that a chang1.' in the nature of the injur: or condition or in th~· it1..'111s of compensation sought. is not grounds to rn0dit) or re, ise this ;I!.!rt'ement.

17. This Stipulation shall not he construed as an admission b) tll~ United Stares or th1..· Secretary of Health and Human Services that the flu ,accine caused petit ioner's alleged shoukkr injur: or any other injur).

heirs. e:-;ecutors. administrators. successors. and/or assigns.

END O F STIPUL.ATIO:\

I I I Respectfully submitted, PETITIONER:

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

dM ~~~ ~OSE HEATHER L. PEARLMAN eLaw Deputy Director West 4 7th Street Torts Branch Kansas City, MO 64 t 12 Civil Division Tel: (816) 221-4335 U.S. Department of Justice Email: [email protected] P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey s. ~t::~~ ~~gned by Jeffrey

- Beach -5 - -- - · Date: 2024.03.08 09:38:33 --0s·o0' for CDR GEORGE REED GRIMES, MD, MPH ~ UUUCV1> EMILIE F. WILLIAMS Director, Division oflnjury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08W-25A Tel: (202) 305-0124 Rockville, MD 20857 Email: [email protected]

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