In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-1807V Filed: September 27, 2019 UNPUBLISHED
RONALD DEAN CUMMINGS,
Petitioner, v. Special Processing Unit (SPU); Joint Stipulation on Damages; Influneza SECRETARY OF HEALTH AND (Flu) Vaccine; Guillain-Barre HUMAN SERVICES, Syndrome (GBS)
Respondent.
Temple Witt Cabell, Cabell Law Firm, P.C., Richmond, VA, for petitioner. Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
Dorsey, Chief Special Master:
On November 17, 2017, petitioner 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 he suffered Guillain-Barre Syndrome (GBS) as a result of his September 23, 2016 influenza (“flu”) vaccine. Petition at 1; Stipulation, filed September 26, 2019, at ¶¶ 2, 4. Petitioner further alleges that the vaccine was administered within the United States, that he suffered the residual effects of his injury for more than six months, and that there has been no prior award or settlement of a civil action on his behalf as a result of his injury. Stipulation at ¶¶ 3, 5; Petition at ¶¶ 2, 16- 18. “Respondent denies that petitioner sustained a Table GBS injury, and denies that petitioner suffered any injury as a result of the influneza vaccine administered on or about September 23, 2016.” Stipulation at ¶ 6. 1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website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). 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Nevertheless, on September 26, 2019, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation:
A lump sum of $97,000.00 in the form of a check payable to petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under § 15(a). Id.
The undersigned approves 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/Nora Beth Dorsey Nora Beth Dorsey 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.
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) RONALD DEAN CUMMrNGS~ ) ) Petitioner, , ) ) No. 17-1807V (ECF) V. ) Chief Special Master Dorsey ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. )
STIPULATION
The parties· hereby stipulate to the following matters:
l. Ronald D~an Cummings ("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 vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"),
42 C.F.R. § 100.3(a).
2. Petitioner received the influenza vaccine on or about September 23, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that as a result of receiving the influenza vaccine, he suffered from
Guillain-Barre Syndrome ("OBS").
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of his condition. 6 .. Respondent denies that petitioner sustained a Table GBS injury, and denies that
petitioner suffered any injury as a result of the influenza vaccine administered on or abo'ut
September 23, 2016.
7. Maintaining their above-stated positions, the patties 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), respondent will issue the following vaccine
compensation payment:
A lump sum of $97,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-l 5(a).
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-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.
I 0. 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 benefits prngrams (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.
2 11. Payments made pursuant to paragraph 8 of this Stipulation, and any amount awarded
pursuant to paragraph 9, will be made in accordance with 42 U. S.C. § 300aa- l 5(i), subject to the
availability of sufficient statutory funds.
12. The parties and their attorneys further agree and stipulate that, except for any award
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-1807V Filed: September 27, 2019 UNPUBLISHED
RONALD DEAN CUMMINGS,
Petitioner, v. Special Processing Unit (SPU); Joint Stipulation on Damages; Influneza SECRETARY OF HEALTH AND (Flu) Vaccine; Guillain-Barre HUMAN SERVICES, Syndrome (GBS)
Respondent.
Temple Witt Cabell, Cabell Law Firm, P.C., Richmond, VA, for petitioner. Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
Dorsey, Chief Special Master:
On November 17, 2017, petitioner 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 he suffered Guillain-Barre Syndrome (GBS) as a result of his September 23, 2016 influenza (“flu”) vaccine. Petition at 1; Stipulation, filed September 26, 2019, at ¶¶ 2, 4. Petitioner further alleges that the vaccine was administered within the United States, that he suffered the residual effects of his injury for more than six months, and that there has been no prior award or settlement of a civil action on his behalf as a result of his injury. Stipulation at ¶¶ 3, 5; Petition at ¶¶ 2, 16- 18. “Respondent denies that petitioner sustained a Table GBS injury, and denies that petitioner suffered any injury as a result of the influneza vaccine administered on or about September 23, 2016.” Stipulation at ¶ 6. 1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is 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). 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Nevertheless, on September 26, 2019, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation:
A lump sum of $97,000.00 in the form of a check payable to petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under § 15(a). Id.
The undersigned approves 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/Nora Beth Dorsey Nora Beth Dorsey 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.
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) RONALD DEAN CUMMrNGS~ ) ) Petitioner, , ) ) No. 17-1807V (ECF) V. ) Chief Special Master Dorsey ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. )
STIPULATION
The parties· hereby stipulate to the following matters:
l. Ronald D~an Cummings ("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 vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"),
42 C.F.R. § 100.3(a).
2. Petitioner received the influenza vaccine on or about September 23, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that as a result of receiving the influenza vaccine, he suffered from
Guillain-Barre Syndrome ("OBS").
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of his condition. 6 .. Respondent denies that petitioner sustained a Table GBS injury, and denies that
petitioner suffered any injury as a result of the influenza vaccine administered on or abo'ut
September 23, 2016.
7. Maintaining their above-stated positions, the patties 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), respondent will issue the following vaccine
compensation payment:
A lump sum of $97,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-l 5(a).
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-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.
I 0. 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 benefits prngrams (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.
2 11. Payments made pursuant to paragraph 8 of this Stipulation, and any amount awarded
pursuant to paragraph 9, will be made in accordance with 42 U. S.C. § 300aa- l 5(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 unreimbursable 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-l 5(a) and (d), and subject to the conditions of 42 U.S.C.
§ 300aa- l 5(g) and (h).
13. In return for the payment described in paragraph 8, and any amount awarded
pursuant to paragraph 9, petitioner, in his individual capacity, and on behalf of his heirs,
executors, administrators, successors, and/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 United States
Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C.
§ 300aa-l Oet 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 vaccine administered on or about September 23, 2016, as
alleged by petitioner in a petition for vaccine compensation filed on or about November 17,
2017, in the United States Court of Federal Claims as petition No. 17-l 807V.
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 patties.
3 15. If the Special Master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the United States Cou11 of Federal Claims fails to enter judgment in
conformity with a decision that is in complete conformity with the terms ofthis 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 I
damages claimed under the National Childhood Vaccine Injury Act of 1986, as ameifded, except
as otherwise noted in paragraph 9 above. There is absolutely no agreement on the pa1i 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 pa1iies further agree and understand that the award described in this
Stipulation may reflect a compromise of the pa11ies' 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 influenza vaccine caused petitioner to suffer
OBS or any other injury.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
4 Respectfully submitted,
CORD FOR AUT~ORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL:
TEMP -~ - Cabel a Firm, P.C. irector 7840 :9rest Hill Ave., Suite A To1ts Branch Richmond, VA 23225 Civil Division (804) 447-3076 U.S. Department of Justice 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:
TAMARA OVERBY ~ I Acting Director, Division of Vaccine Trial Attorney Injury Compensation (DVIC) Torts Branch Healthcare Systems Bureau, U.S. Department Civil Division Of Health and Human Services U.S. Department of Justice 5600 Fishers Lane P.O. Box 146 Parklawn Building, Mail Stop 11 C-26 Benjamin Franklin Station Rockville, MD 20857 Washington, DC 20044-0146 (202) 305-0274
Dated: ~ J",~ 11