Cody v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1013V

UNPUBLISHED

GLADYS CODY, Chief Special Master Corcoran

Petitioner, Filed: October 4, 2021 v.

Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Influenza HUMAN SERVICES, (Flu) Vaccine; Guillain-Barre Syndrome (GBS)

Respondent.

John Graham Schultz, Leavy Shultz Davis, PS, Kennewick, WA, for Petitioner. Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1

On July 15, 2019, Gladys Cody 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-Barre Syndrome (GBS) as a result of her October 23, 2018 influneza (“flu”) vaccination. Petition at 1; Stipulation, filed at September 28, 2021, ¶¶ 1-2; 4. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On June 10, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for GBS. On September 28, 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.

1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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).

Pursuant to the terms stated in the attached Stipulation, I award the following compensation:

a. An amount sufficient to purchase the annuity contract described in paragraph 10 of the parties’ Stipulation, paid to the life insurance company from which the annuity will be purchased (the "Life Insurance Company"); and

b. A lump sum of $437,290.87 in the form of a check payable to Petitioner.

This amount represents compensation for all remaining damages that would be available under 42 U.S.C. §300aa-15(a), including $175,000.00 for pain and suffering, $184,883.95 for past unreimbursed medical expenses, and $77,406.92 for the first year of future unreimbursed medical expenses.

Stipulation at ¶ 8.

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.

IN THE UNITED ST ATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

GLADYS CODY,

Petitioner,

No. l9-l013V

v. Chief Special Master Corcoran (SPU)

ECF

SECRETARY OF HEAL TH AND HUMAN SERVICES,

Respondent.

STIPULATION

The parties hereby stipulate to the following matters:

I. Petitioner Gladys Cody ("petitioner") filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l Oto -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. § I 00.3 (a).

2. Petitioner received her flu vaccination on October 23, 2018.

3. The vaccination was administered within the United States.

4. Petitioner sustained the onset of Guillain-Barre Syndrome ("GBS'') within the time period set forth in the Table following administration of the flu vaccine, and experienced the residual effects of her GBS for more than six months.

5. There is not a preponderance of the evidence demonstrating that petitioner's GBS and its residual effects were due to a factor unrelated to this October 23, 2018 flu vaccine.

6. Petitioner represents that there has been no prior award or settlement of a civil action

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for damages on her behalf as a result of her condition.

7. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine Program for her GBS Table injury. Therefore, 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-2l(a)(I), the Secretary of Health and Human Services will issue the following vaccine compensation paymems:

a. An amount sufficient to purchase the annuity contract described in paragraph IO below, paid to the life insurance company from which the annuity will be purchased (the "Life Insurance Company"); 1 and

b. A lump sum of $437,290.87, in the form of a check payable to petitioner. This amount represents compensation for all remaining damages that would be available under 42 U.S.C. §300aa-l 5(a), including$ I 75,000.00 for pain and suffering,$ I 84,883.95 for past unreimbursed medical expenses, and $77,406.92 for the first year of future unreimbursed medical expenses.

9. The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from two of the following rating organizations:

a. A.M. Be::.t Comµany : A++, A :, A+g, A+p, /\+r, or J\+s;

b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aal, or Aaa;

c. Standard and Poor' s Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or AAA;

1 Notwithstanding references herein to "the Life Insurance Company'' or "the annuity contract," to satisfy the conditions set forth herein, in respondent's sole and absolute discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies.

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d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA, AA+, or AAA.

I 0. The Secretary of Health and Human Services agrees to purchase an annuity contract from the Life Insurance Company for the benefit of petitioner, pursuant to which the Life Insurance Company will agree to make payments periodically to petitioner for the following items of compensation:

a. For future unreimbursable Medicare Supplement F expenses, beginning on the first anniversary of the date of judgment, an annual amount of$4,123.20 to be paid for the remainder of petitioner's life, increasing at the rate of five percent (5%), compounded annually from the date of judgment.

b. For future unreimbursable Medication, TED Hose, Medical Alert Pendant, Wheelchair Cushion, Power Scooter, and Scooter Maintenance expenses, beginning on the first anniversary of the date of judgment, an annual amount of $1,072.18 to be paid for the remainder of petitioner' s life, increasing at the rate of four percent (4%), compounded annually from the date of judgment.

c. For future unreimbursable Vehicle Modification Maintenance expenses, beginning on the first anniversary of the date of judgment, an annual amount of $100.00 to be paid for the remainder of petitioner's life, increasing at the rate of four percent (4%), compounded annually from the date of judgment.

d. For future unreimbursable Case Management expenses, beginning on the first anniversary of the date of judgment, an annual amount of $6,144.00 to be paid for the remainder of petitioner' s life, increasing at the rate of four percent (4%), compounded annually from the date of judgment.

At the sole discretion of the Secretary of Health and Human Services, the periodic payments may be provided to petitioner in monthly, quarterly, annual or other installments. The "annual amounts" set forth above describe only the total yearly sum to be paid to petitioner and do not require that the payment be made in one annual installment. Petitioner will continue to receive the annuity payments from the Life Insurance Company only so long as petitioner is alive at the time that a particular payment is due. Written notice to the Secretary of Health and

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Human Services and the Life Insurance Company shall be provided within twenty (20) days of petitioner's death.

11. The annuity contract will be owned solely and exclusively by the Secretary of Health and Human Services and will be purchased as soon as practicable following the entry of a judgment in conformity with this Stipulation. The parties stipulate and agree that the Secretary of Health and Human Services and the United States of America are not responsible for the payment of any sums other than the amounts set forth in paragraph 8 herein and the amounts awarded pur~uant to paragraph 12 herein, and that they do not guarantee or insure any of the future annuity payments. Upon the purchase of the annuity contract, the Secretary of Health and Human Services and the United States of America are released from any and all obligations with respect to future annuity payments.

12. 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-2l(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.

13. Petitioner and her attorney represent that they have identified to respondent all known soun.:es of payment for items or services for which the 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 (42 U.S.C. § 1396 et seq.)), or entities that provide health services on a pre-paid basis.

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14. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 12 ofthis Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds.

15. The parties and their attorneys further agree and stipulate that, except for any award for attorneys' fees and litigation costs, and past unreimbursable expenses, the money provided pursuant to this Stipulation either immediately or as part of the annuity contract, will be used solely for petitioner' s benefit as contemplated by a strict construction of 42 U.S.C. §§ 300aa- i 5(a) and (dJ, and subject to the conditions of 42 U.S.C. §§ 300aa-l 5(g) and (h).

16. In return for the payments described in paragraphs 8 and 12, 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-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 influenza vaccination administered on Octoher 23. 2018, as alleged by petitioner in a petition for vaccine compensation filed on July 15, 2019, in the United States Court of Federal Claims as petition No. 19-1013V.

17. 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.

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18. 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 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.

19. 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 12 above. There is absolutely no agreement on the part of the pa1ties 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 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.

20. The 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's injury or any other injury or her current condition; however, petitioner has satisfied the Table criteria to establish entitlement to compensation.

21. Petitioner hereby authorizes respondent to disclose documents filed by petitioner in this case consistent with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of Records, No. 09-15-0056.

22. 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,

PETITIONER:

( / J) 7 ,tJJ~ GLADYSCY

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

c~1-14L~ ~~~ HEATHER L. PEARLMAN

J2~ G. SCHULTZ ~eavy Schultz Davis, P.S. Deputy Director 2415 W. Falls Avenue Torts Branch, Civil Division Kennewick, WA 99336 U.S. Department of Justice Tel: 509-736-1330 P.O. Box 146 Email: jschultz@tricitylaw.com Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES:

~T~

z;;a&, ~ I TAMARA OVERBY D~Sc.-,#-~ ~w~L- P~ ADRIANA TEITEL

Acting Director, Division of Injury Trial Attorney Compensation Programs Torts Branch, Civil Division Healthcare 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 Tel: 202-616-3677 5600 Fishers Lane, 08N 146B Email: adriana.teitel@usdoj.gov Rockville, MD 20857

Dated: o,/u,liazt