Cox v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1415V UNPUBLISHED

CINDY COX, Chief Special Master Corcoran

Petitioner, Filed: December 14, 2021 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Influenza HUMAN SERVICES, (Flu) Vaccine; Guillain-Barre Syndrome (GBS) Respondent.

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1

On September 17, 2018, Cindy Cox 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 from Guillain-Barre Syndrome resulting from an influenza (“flu”) vaccine she received on November 3, 2015. Petition at 1; Stipulation, filed December 14, 2021, at ¶¶ 4. Petitioner further alleges that she suffered the residual effects of her Guillain-Barre Syndrome for more than six months and has never received any compensation for her injury. Petition at ¶¶ 12-15; Stipulation at ¶¶ 4- 5. Respondent denies “that Petitioner sustained a GBS Table injury, and further denies that the flu vaccine caused Petitioner’s alleged GBS or any other injury or condition. ” Stipulation at ¶ 6.

Nevertheless, on December 14, 2021, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the 1 Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am required to post it on the United States Court of Federal Claims' website in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. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). 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 $230,892.27, representing $175,000.00 for Petitioner’s pain and suffering and $55,892.27 for first-year life care expenses, in the form of a check payable to Petitioner. Stipulation at ¶8(a).

• A lump sum of $197,946.19, which represents reimbursement for a lien for services rendered on behalf of Petitioner, in the form of a check jointly payable to Petitioner and the Colorado Department of Health Care Policy and Financial, Medicaid ID Number: R868471, 333 W. Hampden Ave., Suite 425, Englewood, CO 80110. Stipulation at ¶8(b).

• An amount sufficient to purchase the annuity contract described in the Stipulation at Paragraph 10. Stipulation at ¶8(c).

These amounts represent compensation for all damages that would be available under 42 U.S.C. §300aa-15(a).

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 f iling of notice renouncing the right to seek review.

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

) CINDY COX, ) ) Petitioner, ) V. ) ) No. 18-1415V SECRETARY OF HEALTH ) Chief Special Master Corcoran AND HUMAN SERVICES, ) ECF ) Respondent. )

STIPULATION

The parties hereby stipulate to the following matters:

1. Cindy Cox, 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 the

influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"),

42 C.F.R. § 100.3 (a).

2. Petitioner received her flu vaccination on November 3, 2015.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she suffered from Ouillain-Barre syndrome ("OBS") resulting

from the adverse effects of the flu vaccine, and that she experienced the residual effects of this

condition 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 petitioner sustained a OBS Table injury, and further denies that the flu vaccine cause petitioner's alleged GBS or any other injury or 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)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

a. A lump sum of $230,892.27, which amount represents compensation for first-year life care expenses ($55,892.27) and pain and suffering ($175,000.00), in the form of a check payable to petitioner;

b. A lump sum of $197,946.19, 1 which amount represents reimbursement of a lien for services rendered on behalf of petitioner, in the form of a check payable jointly to petitioner and the Colorado Department of Health Care Policy and Financing:

Colorado Medical Assistance Tort and Casualty Recovery Program 333 W. Hampden Ave., Suite# 425 Englewood, CO 80110 Recipient Name: Cindy J. Cox Medicaid ID Number: R868471 Attn: Kylie Lewis

Petitioner agrees to endorse this check to the Colorado Department of Health Care Policy and Financing.

c. An amount sufficient to purchase the annuity contract described in paragraph l 0 below, paid to the life insurance company from which the annuity will be purchased (the "Life Insurance Company"). /

1 This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Colorado may have against any individual as a result of any Medicaid payments the Colorado Medical Assistance Program has made to or on behalf of Cindy Cox as a result of her alleged vaccine-related injury suffered on or about November l, 2015, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-l5(g), (h).

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

U.S.C. §300aa-15(a).

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. Best Company: A++, A+, A+g, A+p, A+r, or A+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;

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, Cindy Cox, pursuant to which the

Life Insurance Company will agree to make payments periodically to petitioner as follows for

the following life care items available under42 U.S.C. §300aa-15(a).

a. For future unreimbursable Insurance Premium and Maximum out of Pocket expenses, beginning on the first anniversary of the date of judgment, an annual amount of $14,180.80 to be paid up to the anniversary of the date of judgment in year 2027, increasing at the rate of three percent (3%), compounded annually from the date of judgment.

b. For future unreimbursable Medicare Part B Deductible expenses, beginning on the anniversary of the date of judgment in year 2027, an annual amount of $203 .00 to be paid for the remainder of petitioner's life, increasing at the rate of three percent (3%), compounded annually from the date of judgment.

c. For future unreimbursable Medigap and Medicare Part D expenses, beginning on the anniversary of the date of judgment in year 2027, an annual amount of $1,788.60 to be paid for the remainder of petitioner's life, increasing at the rate of three percent (3%), compounded annually from the date of judgment.

d. For future unreimbursable Light Weight Folding Mobility Scooter, Scooter Maintenance, Scooter Battery, Lift Chair, Reacher, Plastic Mattress Cover, Raised Toilet

3 Seat, Transfer Bench, Handheld Shower, Bath Sponge, and Antimicrobial Skin Ointment expenses, on the first anniversary of the date of judgment, a lump sum of $435.92. Thereafter, beginning on the second anniversary of the date of judgment, an annual amount of $545.92 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of three percent (3%), compounded annually from the date of judgment.

e. For future unreimbursable Disposable Glove, Brief, and Underpad expenses, beginning on the first anniversary of the date of judgment, an annual amount of $1,576.90 to be paid for the remainder of petitioner's life, increasing at the rate of three percent (3%), compounded annually from the date of judgment.

f. For future unreimbursable Home Care expenses, beginning on the first anniversary of the date of judgment, an annual amount of$37,960.00 to be paid up to the anniversary of the date of judgment in year 2027. Thereafter, beginning on the anniversary of the date of judgment in year 2027, an annual amount of $75,920.00 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of three percent (3%), compounded annually from the date of judgment.

g. For future unreimbursable Transportation expenses, beginning on the first anniversary of the date of judgment, an annual amount of $500.00 to be paid for the remainder of petitioner's life, increasing at the rate of three percent (3%), compounded annually from the date of judgment.

At the sole discretion of the Secretary of Health and Human Services, the periodic payments set

forth in paragraph IO above 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

she, Cindy Cox, is alive at the time that a particular payment is due. Written notice shall be

provided to the Secretary of Health and Human Services and the Life Insurance Company within

twenty (20) days of Cindy Cox'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

4 payment of any sums other than the amounts set forth in paragraph 8 herein and the amounts

awarded pursuant 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 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 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.

14. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to

paragraph 12 of this 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-

l 5(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa-15(g) and (h).

5 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 flu vaccination administered on November 3, 2015, as

alleged by petitioner in a petition for vaccine compensation filed on or about September 17, 2018

in the United States Court of Federal Claims as petition No. 18-1415V.

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.

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

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

6 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.

20. 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.

21. 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's alleged GBS or

any other injury or her current condition.

22. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

7 12/9/2021 6:08 PM FROM: OfficeMax ij6225 P. 1 / 1 .. .: . ·; ·., . - .:.~··:._,'.; . ..-....:;-.~...;.: --~-~---: .... ,-_.:. -~ _;_:·'. _.: __ _. _:, .... :. __ ~ . ~:. :. .•:.-. .....

Respectfully submitted,

PETITIONER:

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

£: MULLER BRAZIL, LLP MULLER, ES

715 Twining Road, Suite 208 -~-tt Lb+:LAW'aev.1M1r--- HEATHER L. PEARLMAN Deputy Director Torts Branch Dresher. PA 19025 Civil Division Tel: (215) 885-1655 U.S. Department of .Justice max@myvaccinelawyer.com 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: {u,.,__J..u~~ L?ti-& ~ , o~Sc.-, r:t~ btie~LP~ TAMARA OVERBY CAMILLE M. COLLETT Acting 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, 08N 146B Tel: (202) 616-4098 Rockville. MD 20857 E-mail: Camille.M.Collett@usdoj .gov

Dated: ) :v}Jj Jzt,L)