Gambo v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 13-691V (Not to be published)

***************************** * AMERICO E GAMBO, * Filed: March 17, 2015 as Personal Representative of the Estate of * FRANCES CHAMBERS GAMBO, * deceased, * * Decision by Stipulation; Damages; Petitioner, * Influenza (“Flu”) Vaccine; * Guillain-Barrè Syndrome (“GBS”) v. * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * * *****************************

Danielle Strait, Maglio Christopher and Toale, PA, Washington, DC, for Petitioner.

Lisa Watts, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On September 17, 2013, Americo E. Gambo filed a petition, as personal representative of the estate of Frances Chambers Gambo, deceased, seeking compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that as a result of receiving the influenza (“flu”) vaccine in October of 2010, Frances Gambo developed Guillain-Barrè syndrome (“GBS”) or another demyelinating condition. Petitioner further contends that Ms. Gambo’s GBS

1 Because this decision contains a reasoned explanation for my action in this case, it will be posted on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To do so, Vaccine Rule 18(b) provides that each party has fourteen (14) days within which to request redaction “of any information furnished by that party: (1) that is 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 decision will be available to the public. Id. 2 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended, 42 U.S.C.A. ' 300aa-10 to 34 (2006)) [hereinafter “Vaccine Act” or “the Act”]. Individual sections references hereafter will be to ' 300aa of the Act. (or other demyelinating condition) was a substantial factor in the cause of her death on December 4, 2011. Although Petitioner was unable to locate documentary proof of vaccination, I found (in a ruling dated December 18, 2014) that Petitioner established adequate proof of vaccination based on circumstantial evidence. Fact Ruling on Proof of Vaccination (ECF No. 41).

Respondent denies that the flu vaccine caused Ms. Gambo’s GBS, or any other injury, or was a substantial factor in the cause of her death. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed March 12, 2015) that the issues before them could be settled, and that a decision should be entered awarding Petitioner compensation.

I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The stipulation awards:

 A lump sum of $175,000.00 in the form of a check payable to Petitioner as personal representative of the estate of Frances Chambers Gambo.

Stipulation ¶ 8. This amount represents compensation for all damages that would be available under 42 U.S.C. ' 300aa-15(a).

I approve a Vaccine Program award in the requested amounts set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.3

IT IS SO ORDERED.

/s/ Brian H. Corcoran Brian H. Corcoran Special Master

3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review.