Davies v. Secretary of Health and Human Services

Opinion

Sn the Cited States Court of Federal Clanns

OFFICE OF SPECIAL MASTERS No.18-502V Filed: July 13, 2021

*K * * * * OR * OR * OR * OO BRIANNA DAVIES, * UNPUBLISHED *K Petitioner, * Decision on Joint Stipulation; * Uveitis; Human Papillomavirus V. * (“HPV”) Vaccine. *K SECRETARY OF HEALTH * AND HUMAN SERVICES, ** *K Respondent. ** *K * * * * OR * OR * OR * OO

Meredith Daniels, Esg., Conway, Homer, P.C., Boston, MA, for petitioner. Colleen Hartley, Esq., US Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION!

Roth, Special Master:

On April 5, 2018, Brianna Davies [“Ms. Davies” or “petitioner”? filed a petition for compensation under the National Vaccine Injury Compensation Program.? Petitioner alleges that she suffered from uveitis after receiving a human papillomavirus (“HPV”) vaccine on April 11,

' Although this Decision has been fomnally designated “unpublished,” it will nevertheless be posted on the Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will be available to anyone with access to the internet. However, the parties may object to the Decision’s inclusion of certam kinds of confidential information. Specifically, under Vaccine Rule 1 8(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) thatis 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 whole Decision will be available to the public. /d.

* The matter was originally filed by petitioner’s parents, Matthew Davies and Joan Davies, as Brianna Davies was a minor. During the pendency of this case, Brianna Da vies reached theage of majority and was properly substituted as petitioner.

3 National 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 subpara graph of 42 U.S.C. § 300aa (2012). 2016. Stipulation filed July 13, 2021, at {{[ 1-4. Respondent denies that the immunization caused petitioner’s injury. Stipulation at { 6.

Nevertheless, the parties have agreed to settle the case. On July 13, 2021, the parties filed a joint stipulation agreeing to settle this case and describing the settlement terms.

Respondent agrees to issue the following payments:

A lump sum of $97,975.40 in the form of a check payable to petitioner, Brianna Davies; this sum represents $95,000.00 for pain and suffering and $2,975.40 for first year life care expenses.

A lump sum of $6,994.21, in the form of check payable jointly to petitioner and her parents, Matthew and Joan Davies, to be endorsed to Matthew and Joan Davies; this sum represents past unreimbursable expenses.

An amount sufficient to purchase the annuity contract described in paragraph 10 of the signed Stipulation, paid to the life insurance company from which the annuity will be purchased.

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

I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance with this decision.*

IT ISSO ORDERED.

s/ Mindy Michaels Roth Mindy Michaels Roth Special Master

* Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review.

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

) BRIANNA DAVIES, ) ) Petitioner, ) v. ) ) No. 18-502V SECRETARY OF HEALTH ) Special Master Roth AND HUMAN SERVICES, ) ECF ) Respondent. ) ) STIPULATION

The parties hereby stipulate to the following matters:

1. Brianna Davies, 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 human papillomavirus (“HPV”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).

2. Petitioner received her vaccination on April 11, 2016.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she suffered from uveitis as a result of receiving the vaccine, and that she experienced the residual effects of this 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 her behalf as a result of her condition.

6. Respondent denies that the vaccine caused petitioner to suffer from uveitis or any

' This matter was originally filed by Matthew Davies and Joan Davies, parents of Brianna Davies, a minor. During the pendency of this case, Briana Davies reached the age of majority and she was properly substituted as petitioner. other injury or her 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 payments:

U.S.C.

a. A lump sum of $97,975.40, which amount represents compensation for first year life care expenses ($2,975.40), and pain and suffering ($95,000.00) in the form of a check payable to petitioner;

b. A lump sum payment of $6,994.21, representing compensation for past unreimbursable expenses, in the form of a check payable jointly to petitioner, and her

parents, Matthew Davies and Joan Davies. Petitioner agrees to endorse this payment to Matthew Davies and Joan Davies; and

c. An amount sufficient to purchase the annuity contract described in paragraph 10 below, paid to the life insurance company from which the annuity will be purchased (the “Life Insurance Company”).

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

§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+, At+g, At+p, Att, or Ats; 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.

10. The Secretary of Health and Human Services agrees to purchase an annuity contract from the Life Insurance Company for the benefit of petitioner, Brianna Davies, pursuant to which the Life Insurance Company will agree to make payments periodically to petitioner as follows for the following life care items available under 42 U.S.C. §300aa-15(a).

a. For future unreimbursable Affordable Care Act Maximum out of Pocket expenses, beginning on the first anniversary of the date of judgment, an annual amount of $7,525.00 to be paid up to the anniversary of the date in year 2066, increasing at the rate of four percent (4%), compounded annually from the date of judgment.

b. For future unreimbursable Affordable Care Act Premium expenses, beginning on the first anniversary of the date of judgment, an annual amount of $4,013.52 to be paid up to the anniversary of the date in year 2027, increasing at the rate of four percent (4%), compounded annually from the date of judgment.

c. For future unreimbursable Medicare Part B Deductible, Ophthalmologist, and Visual Testing expenses, beginning on the anniversary of the date of judgment in year 2066, an annual amount of $518.80 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 Medicare Part D expenses, beginning on the anniversary of the date of judgment in year 2066, an annual amount of $3,554.42 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. e. For future unreimbursable Tylenol, Dr. Goldberg Mileage, Dr. Goldberg Parking and Dr. Goldberg Toll expenses, beginning on the first anniversary of the date of judgment, an annual amount of $184.40 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 10 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, Brianna Davies, 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 Brianna Davies’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 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-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.

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- 15(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa-15(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 vaccination administered on April 11, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or about April 5, 2018 in the United States Court of Federal Claims as petition No. 18-502V.

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 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 vaccine caused petitioner’s alleged uveitis 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 Respectfully submitted,

PETITIONER: BRIANNA DAVIES

APD C. HOMER, ESQ. ay Homer, P.C.

16 Shawmut Street

Boston, MA 02116

Tek (617) 695-1990

AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES:

Dk Wahler, PN Se, WS, APN, fr

TAMARA OVERBY Acting Director, Division of Injury Compensation Programs Healthcare Systems Bureau Health Resources and Services Administration U.S. Department of Health and Human Services 5600 Fishers Lane, 08N146B Rockville, MD 20857

Dated: OF h 3 hor)

AUTHORIZED REPRSENTATIVE OF THE ATTORNEY GENERAL:

dbo SA Peo AY YV——

HEATHER L. PEARLMAN ~Acting Deputy 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 RESPONDENT:

(sl Leon CHa

COLLEEN C. HARTLEY

Trial Attorney

Torts Branch

U.S. Department of Justice

P.O. Box 146

Tel: (202) 616-3644

Email: colleen. hartley@usdoj.gov