Day v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2068V

SAUNDRA DAY, Chief Special Master Corcoran

Petitioner, Filed: January 12, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.

Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On October 25, 2021, Saundra Day filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). On September 28, 2022, Ms. Day filed an amended petition. Petitioner alleges that she suffered Guillain-Barre Syndrome (“GBS”) resulting from an influenza (“flu”) vaccine received on October 24, 2018. Amended Petition at 1; Stipulation, filed January 11, 2024, at ¶¶ 2-4. Petitioner further alleges that the vaccine was administered in the United States, she experienced the residual effects of her condition for more than six months, and there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition. Amended Petition at ¶¶ 1, 34, 35; Stipulation at ¶¶ 3-5. “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.

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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 references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Nevertheless, on January 11, 2024, 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 lump sum of $50,000.00 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 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 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.

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

SAUNDRA DAY, ) ) Petitioner, ) v. ) No.11-2068V ) Cb!ef Special Master Corcoran SECRETARY OF HEALTH AND ) SPU ) ECF HUMAN SERVICES, ) Respondent. ) _______________ )

STIPULATION

The parties hereby stipulate to the following matters:

1. Saundra Day, 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 an

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

42 C.F.R. § 100.3 (a).

2. Petitioner received the flu vaccine on October 24, 2018.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she suffered from a Table injury, OuiUain-Barre Syndrome

(0GBS''), within the Table timeframe after receiving a 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 injwy, and further denies

that the flu vaccine caused petitioner's a11eged OBS or any other injury or condition. 7. Maintaining their abov~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 ofjudgment refleciing a decision consistent with the tenns of this Stipulation, and after petitioner has filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

A lump sum of $50,000.00 in the fonn of a check payable to petitioner. This amount represents compensation for all damages that would he available under 42 U.S.C. § 300aa-IS(a).

9. As soon as practicable after the entry ofjudgment on entitlement in this case, and after

petitioner bas filed both a proper and timely election to receive compensation pursuant to

42 U.S.C. § 300aa-2 l(a)(l), and an application, the parties will submit to further proceedings

before the special master to award reasonable attorneys• fees and costs incuned in proceeding

upon this petition.

10. Petitioner and her attorney represent that compensation to be provided pursuant to

this Stipulation is not for any items or services for which the Program is not primarily liable

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

expected to be made under any 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 by entities that provide health services on a pre-paid basis.

11. Payment 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-

l S(i), subject to the availability ofsufficient statutory funds.

2 12. The parties and their attorneys further agree and stipulate that, except for any award

for attorneys• fees and litigation costs. and past unreimbursed 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 S(a) and (d), and subject to 1he conditions of 42 U.S.C.

§ 300aa-1S{g) and (h).

13. In return for the payments described in paragraphs 8 and 9, petitioner, jn 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 ofHealth 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 Coun of Federal Claims, under the National Vaccine Injury Compensation

Program. 42 U.S.C. § 300aa-10 et seq., on acco\U'lt of, or in any way growing out of, any and all

known or unknown. suspected or unsuspected personal injuries to or death of petitioner resu[ting

from, or alleged to have resulted from, the flu vaccination administered on October 24, 2018, as

a11eged by petitioner in a petition for vaccine compensation filed on or about October 2S, 2021,

in 1he United States Court of Federal Claims as petition No. 2 l-2068V.

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

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

15. If the special master fails to issue a decision in complete confonnity with the terms

ofthis Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity with a

decision that is in complete confonnity with the tenns of this Stipulation, then the parties'

settlement and this Stipulation shall be voidable at the sole discretion of either party.

3 16. This Stipulation expresses a full and complete negotiated settlement of liability and

damages claimed under the National Childhood Vaccine lttjury Act of 1986, as amended, except

as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part ofthe

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.

17. 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 condition.

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

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

END OF STIPULATION

I I I I I I I I I I I I I I I I I

4 Respectfully submitted,

PETITIONER: {•

~~~ SAUNDRA DAY

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

Jo7ioE,JR. · ~~~~ HEATIIER L. PEARLMAN Counsel for Petitioner Deputy Director Howie Law, P.C. Torts Branch, Civil Division 2608 Hibernia St. U.S.DepartmentofJustice Dallas, Texas 75204 P.O. Box 146 Benjamin FrankHn Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE A'ITORNEYOFRECORDFOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HOMAN SERVICES: George R. Grimes 01g1u11ys1gntd byGtorgtll Grfmts•S14 -S14 Date!: 2024.01.09 12:2t-.s1 -os'OO'

CDR GEORGE REED GRIMES, MD, MPH Director, Division of Injury Trial Attorney Compensation Programs Torts Branch, Civil Di on 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) 307-1815 5600 Fishers Lane, 08W2SA kimberly.davey@usdoj.gov Rockville, MD 20857

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