Rast v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 24-0419V

ERIC P. RAST, Chief Special Master Corcoran Petitioner, v. Filed: February 13, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Matthew F. Belanger, Faraci Lange, LLP, Rochester, NY, for Petitioner.

Emily Hanson, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On March 19, 2024, Eric P. Rast filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). On September 27, 2021, Petitioner received an influenza (“flu”) vaccine, which vaccine is listed in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).

Petitioner alleges that he suffered a Table injury of Guillain-Barré syndrome (“GBS”) within the time period set forth in the Table following administration of the vaccine.

Petitioner further alleges that he suffered the residual effects of this injury for more than six months.

Respondent denies that Petitioner sustained a Table GBS injury; denies that the vaccine caused Petitioner’s alleged GBS, or any other injury; and denies that Petitioner’s current condition is a sequela of a vaccine-related injury.

Nevertheless, on February 13, 2025, 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 $100,000.00, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement 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 MASTERS

ERIC P. RAST, Petitioner, No. 24-4 19V Chief Special Master Corcoran V. ECf SECRETARY or HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the fol lowing matters: I. Eric P. Rast (.. petitioner'') filed a petition for vaccine compensation under the National Vaccine Injury CoIYipensati on 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 n:ccivcd a flu vaccine on September 27, 202 1.

3. The vaccine was administered within the United States.

4. Petitioner alleges that petitioner suffered a Table inj ury of Guillain-Barre syndrome C-·GBS'") within the time period set forth in the Table following administration of the Yacc ine.

Petitioner further alleges tbat petitioner suffered the residual effects of the alleged 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 petitioner' s behalf as a result of the alleged injury.

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 petitioner's current condition is a sequelae 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. /\.s soon as practicable after an entry of _judgment reflec ting a decision consistent with tbe terms of this Sripul.1tion. and after petitioner has filed an election to recci\'c compensation pursuant to 42 U.S.C. § 300aa-2 l(a)(l ), the Secretary of !Iealth and Human Services will issue the fo llowing vaccine compensation payment: /\. lump sum of $100,000.00 to be paid through an ACI-1 deposit 10 petitioner·s counsel' s IOLTA account for prompt disbursement to petitioner.

This amount represents compensation fo r all damages that vvoulcl be nvailablc under 42 U.S.C. § 300aa-15(a).

9. As soon as practicable after the entry of judgment on entitlement in thi s case, and artcr petitioner has ti led both a proper an<l timely ckction to receive compensation pursuant to 42 U.S.C. § 300mi-2 1(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.

I 0. Petitioner and petitioner· s attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services fo r which the Program is not primarily Iiable under 42 U.S.C. § 300aa- 15(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 basis.

11. Payments 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), subj ect to the availability of sufficient statutory funds.

12. The parties and their attorneys further agree and stipulate that, except for any award for attorney's fees and litigation costs, and past unreimbursed expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction or 42 U.S.C. § 300aa-1 5(a) and (cl), and subject to the conditi ons of 42 U.S.C. § 300aa-l 5(g) and (h).

13. In return for the payments described in paragraphs 8 and 9. peti tioner. in petitioner"s individual capacity, and on behalf of petitioner" s heirs. executors, administrators. successors or assigns, does forever irrevocably und unconditionally n:lease, acquit and discharge the United States and the Secretary of! lcalth and lluman 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 han: 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 0 et seq., on account oC or in any way growing out of, any and al I known or unknovm. suspected or unsuspected personal injuries to or death or petitioner resulting from. or alleged to have resulted from, the flL1 vaccination administered on September 27. 2021, as alleged in a petition for vaccine compensat ion fil ed on or about Murch 19, 2024, in the United States Court of Federal Claims as petition No. 24-4 I 9V.

14. lf petitioner should die prior to entry of jL1dgmcnt. 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 conformity with the terms of this Stipulation or if the Court of Federal Claims fa ils to enter judgment in conformity with a decision that is in complete confo rmity with the tern1s of this Stiplllation. then the parties· settlement and this Stipulation shall be \'Oidable 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 Vacc ine Inj ury Act of 1986, as amenckd, 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 refl ect a compromise or 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 re,·ise this agreement.

17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and lluman Services thnt the flu vaccine caused peti tioner" s alleged OBS or any other inj my or petitioner· s current condition. or that petitioner suffe red an injury contained in the Vaccine Injury Table.

18. !\II rights and obligations of petitioner hereunder shall apply equally to petitioner· s heirs, executors, administrators. successors, and/or assigns.

END OF STIPULATION I I I

Respectfully submitted, PETIT NER:

ERIC P. RAST

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

. ~ \ l. P-e.~ HEATHER L. PEARLMAN Faraci Lange, LLP Deputy Director 1882 South Winton Road, Suite I Torts Branch Rochester, NY 14618 Civil Division (585) 399-6026 U.S. Department of Justice [email protected] P.O. Box 146 Benjamin Franklin Station Washington, DC 20044.01 46 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Digitally signed by Jeffrey Jeffrey S. S. Beach •S Beach -5 Date: 2025.01 .29 16:58:09 _ __ _ __ -os·oo· for CAPT GEORGE REED GRIMES, MD, MPH EMILYANSON Director, Division of Injury 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 (202) 430-4802 Rockville, MD 20857 [email protected]

Dated: 2 ( I? [ 2,o2,..C5"' s