Abdelnour v. Secretary of Health and Human Services

Opinion

In the Anited States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 16-1580V (not to be published)

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JAMES ABDELNOUR, : * Filed: June 27, 2022 Petitioner, *

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Vv. * Decision by Stipulation; Damages; * Influenza (“Flu”) Vaccine; Guillain-Barré SECRETARY OF HEALTH AND : syndrome (“GBS”); Chronic Immune HUMAN SERVICES, » Demyelination Polyneuropathy (“CIDP”).

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Respondent. *

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Jeffrey Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner Amanda Pascuito, U.S. Department of Justice, Washington, DC, for Respondent

DECISION ON JOINT STIPULATION!

On November 29, 2016, James Abdelnour (“Petitioner”) filed a petition, seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program’).” Pet., ECF No. 1. Petitioner alleges he suffered from Guillain-Barré syndrome (“GBS”) or Chronic Immune Demyelination Polyneuropathy (“CIDP”) as a result of the influenza (“flu”) vaccination he received on September 11, 2014. See Stipulation J 2, 4, dated June 27, 2022 (ECF No. 96); see also Pet.

' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a 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). Otherwise, the Decision in its present form will be available. Jd.

* The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.

Respondent denies “that the flu vaccine caused petitioner to suffer from GBS, CIDP, or any other injury or his current condition.” See Stipulation { 6. Nonetheless, both parties, while maintaining their above-stated positions, agreed in a stipulation filed June 27, 2022 that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation.

I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The stipulation awards: 1. A lump sum of $145,000.00 in the form of a check payable to petitioner; and

2. A lump sum of $8,467.27, representing reimbursement of a Medicaid lien for services rendered to petitioner by the Commonwealth of Massachusetts, in the form of a check payable jointly to petitioner and the Commonwealth of Massachusetts — Casualty Recovery Unit, to be sent to:

Commonwealth of MA Casualty Recovery

P.O. Box 417811

Boston, MA 02241-7811 Attention: Linda McGahey Case #: CRG6940549

Petitioner agrees to endorse this check to Commonwealth of Massachusetts — Casualty Recovery Unit.

Stipulation J 8. This award represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter judgment herewith.

IT ISSO ORDERED.

s/ Katherine E. Oler Katherine E. Oler Special Master

> Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their right to seek review.

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

) JAMES ABDELNOUR, ) ) Petitioner, ) ) No. 16-1580V V. ) Special Master Oler

) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) )

STIPULATION

The parties hereby stipulate to the following matters:

1. James Abdelnour (“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 is a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).

2. Petitioner received the flu vaccine on September 11, 2014.

3. The vaccination was administered within the United States.

4. Petitioner alleges that he suffered from Guillain-Barre syndrome (“GBS”) or Chronic Immune Demyelination Polyneuropathy (“CIDP”) as a result of receiving the flu vaccine, and that he experienced the residual effects of this 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 his behalf as a result of his alleged condition.

6. Respondent denies that the flu vaccine caused petitioner to suffer from GBS, CIDP, or any other injury or his current 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 payment:

a. A lump sum of $145,000.00 in the form of a check payable to petitioner; and

b. A lump sum of $8,467.27! representing reimbursement of a Medicaid lien for services rendered to petitioner by the Commonwealth of Massachusetts, in the form of a check payable jointly to petitioner and the Commonwealth of Massachusetts — Casualty Recovery Unit, to be sent to:

Commonwealth of MA Casualty Recovery

P.O. Box 417811

Boston, MA 02241-7811 Attention: Linda McGahey Case #: CRG640549

Petitioner agrees to endorse this check to Commonwealth of Massachusetts — Casualty Recovery Unit.

These amounts represent compensation for all damages that would be available

under 42 U.S.C. §300aa-15(a).

' This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the Commonwealth of Massachusetts may have against any individual as a result of any Medicaid payments the Commonwealth of Massachusetts has made to or on behalf of petitioner as a result of petitioner’s alleged injury relating to a vaccine administered on September 11, 2014, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g)(h).

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)(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.

10. 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 benefit 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.

11. 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- 15(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 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 his individual capacity, and on behalf of his 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-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 11, 2014, as alleged by petitioner in a petition for vaccine compensation filed on or about November 29, 2016, in the United States Court of Federal Claims as petition No. 16-1580V.

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. Ifthe 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/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 construed as an admission by the United States or the Secretary of Health and Human Services that the flu vaccine caused petitioner to suffer from GBS, CIDP, or any other injury or his current condition.

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

END OF STIPULATION

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Respectfully submitted,

PETI OM

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ATTORNEY OF RECORD FOR PETITIONER:

iF ee S. Co

Jeffrey S. Pop & Associates 9150 Wilshire Blvd, Suite 241 Beverly Hills. CA 90212

Tel: 310-273-5462

Email: jpop@poplawyer.com

AUTHORIZED REPRESENTATIVE

AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL:

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Depu ty 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

OF THE SECRETARY OF HEALTH RESPONDENT:

AND HUMAN SERVICES:

Digitally signed by George R. Grimes -S14

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CDR G EORGE REED GRIMES, MD, MPHAMANDA PASCIUTO

Direct or, Division of Injury Compensation Programs

Health Systems Bureau

Health Resources and Services Adninistration

U.S. Department of Health ard Human Services

5600 Fishers Lane, 08N146B

Rockville, MD 20857

Dated: _¢ (a1 (022 _

Trial Attomey

Torts Branch

Civil Division

U.S. Department of Justice

P.O, Box 146

Benjamin Franklin Station Washington, DC 20044-0146

Tel: (202) 616-4847

Email: amanda.y.pasciuto@usdoj.gov