Boatwright v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-0029V UNPUBLISHED

SHERI BOATWRIGHT, Chief Special Master Corcoran

Petitioner, Filed: October 26, 2021 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Influenza HUMAN SERVICES, (Flu) Vaccine; Guillain-Barre Syndrome (GBS) Respondent.

Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On January 9, 2020, Sheri Boatwright 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 Guillain-Barré syndrome (“GBS”) as a result of an influenza (“flu”) vaccine administered to her on October 9, 2017. Petition at 1; Stipulation, filed on October 26, 2021, at ¶¶ 2, 5. Petitioner further alleges she received the vaccine in the United States, that she experienced the residual effects of her injury for more than six months, and there has been no prior award of settlement of a civil action for damages as a result of her alleged condition. Petition at ¶¶ 1, 4; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused petitioner to [suffer from] GBS, or any other injury, and denies that petitioner sustained a GBS injury.” Stipulation at ¶ 6.

1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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.

2National 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 (2012). Nevertheless, on October 26, 2021, 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. A lump sum of $100,000.00 in the form of a check payable to Petitioner; and

B. A lump sum of $400.49, which amount represents reimbursement of a California Medicaid lien for services rendered on behalf of Petitioner, in the form of a check payable jointly to petitioner and to the State of California, Department of Health Services, Personal Injury Program, MS 4720, P.O. Box 997421 Sacramento, CA 95899-7421, DHCS Account Number: C98842233G-001T.

Stipulation at ¶ 8. These amounts represent 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 the 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

3 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.

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IN THE UNITED STATl~S COURT OF FEDERAL CLAIMS omCE 0:11- SPECIAL MASTERS

) SHERI BOATWRIGHT. ) ) Petitioner, ) ) No. 20-0029V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES. ) ) Respondent. ) ____________ ,..J

SJIPULATIQN The par.ties hereby stipulate to the following matters:

1. Sheri .Boatwright, petidoner, filed a petition for vaccine compensation under the

Natfonal Vaccine IJtjury Compensation Program, 42 U.S.C. § 300aa~l0 to .34 (the "Vaccine

Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt

of an influenza ('1tlu') 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 October 9, 2017.

3. The vaccination was administered within the United States. 4. Petitioner aUeges that she suffered from Guillain Barre Syndrome ("OBS") as a result

of receiving the flu vaccine.

5. Petitioner represents that there ha:; 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 petitioner to OBS, or any other injury,

and denies that petitioner sustained a GBS Table injury. 10/18/2021 13:05 9169393645 THE UPS STORE PAGE 02/05

7. Maintaining theil' 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 StipuJation.

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)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

A. A lump sum. of$ l 00,000.00 .in the form of a check payable to petitioner; and

B. A lump sum of$400.49~ which amount represents reimbursement ofa California Medicaid lien for services rendered on behalf of petitioner, in the fonn of a check payable jointly to petiti1111er and to the State of California, Department of Health Services, Personal Injury ·1wgrarn, MS 4720, P.O. Box 997421 Sacramento, CA 95899-7421, DHCS AcoountNumber: C98842233G~00JT.

Petitioner agrees to endorse this check to the Department of Health Services.

These amounts represent compensation for all damages that would be available under 42

U.S.C. §300aa-J 5(a).

9. As soon as practicable after the e-r.itry 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-2 l (a)(J ), 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 her attorney represent that compensation to be provided pursuant to

this Stipulation is not fOT any items or sen· ices for which the Program is not primarily liable

under 42 U.$.C. § 300aa-15(g). to the extent that payment has been made or can reasonably be

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expected to be made under any State compimsation programs, insurance polici.es, 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 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 sufficieri1 statutory funds.

12. Trn: parties and their attorneys farther agree and stipulate that. except for any award

for attorneys' fees and litigation costs~ and past unrcimbursed 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 (b).

13. In return for the payments dcsc.:ribed in paragraphs 8 and 9, _petitioner, in her

individual capacity, and on behalf of her heirs, executors, administrators, successors or ~signs,

does forever irrevocably and unconditionally release, acquit and discharge the United States and

the Secretary of Health and Human Service~ 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 CJa;ms, uvder 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 unsuspe<: tLld personal injuries to or death of petitioner resulting

from, or alleged to have resulted fro:m, the flu vaccination administered on October 9, 2017, as

alleged by petitioner in a petition for vaccine compensation filed on or about January 9, 2020, in

the United States Court of Federal Claim$ a!; petition. No. 20-0029V. 10/18/2021 13:05 9169393645 THE UPS STORE PAGE 04/05

14. If petitioner should die prior to entry ofjudgment, this agreement shall be voJdable

upon proper notice to the Court on behalf of either or both of the parties.

15. If the special master fails to is~ue a decision in complete conformity with the tezms

of this Stipulation orifthe Court of Federal Claims fails to enter judgment in confoffllity with a

decision that is in complete conformity with the tenns 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 Vaccin.e Injury Act of 1986, as amended, except

as otherwise noted in paragraph 9 above. 'fhere is absolutely no agreement on the part of the

parties hereto to make any payment or to d,, 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' respc(}tive positions as to liability and/or

amount of damages, and further, that a change in the nature of the iajury or condition or in the

items of compensation souibt, 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 petitioner sustained a OBS Table injury; that the

flu vaccine caused petitioner to develop GBS or any other injury; or that her current condition is

a sequelae of a vaccine-re)ated injury.

18. AIJ rights and obligations ofpcricioner hereunder shall apply equally to petitioner's

heirs, executor.s, administrators, successors, and/or assigns.

END OF STIPULATION

I I I I

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Respectfully submitted,

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENI'ATIVE PETITIONER: OF THE ATTORNEY ~ENERAL:

(7Lk AMY A. SENERTH, ESQUIRE v4A<~\Lee HEATHER L. PEARLMAN ~ Muller Brazil, LLP Deputy Director 715 Twining Road, Suite 208 Torts Branch, Civil Division Dresher, PA 19025 U.S . .Department of Justice amy@mull.erbrazil.com P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEYOFRECORDFOR OF THE SECRETARY OF HEALTB RESPONDENT: AND HUMAN SERVICES:

Pa.&. ~ I l?@a-, A/J~ ~f., TAMARA OVERBY C) AMANDA Y. PASCIUTO .Acting Director, Division of Injury Trial Attomey Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justice Health Resources and Services P.O. Box 146 Administration Benjamin Franklin Station U.S. Department of Health Washington, DC 20044-0146 and Human Services (202) 6 l 6~4847 5600 Fishers Lane, 08Nl46B amanda.y.pasciuto@usdoj.gov Rockville, MD 20857

Dated: Io)U,/yrz., I