Harper v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS

******************** * RANDY O. HARPER, * * No. 16-1215V Petitioner, * Special Master Christian J. Moran * v. * Filed: November 30, 2017 * SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine; AND HUMAN SERVICES, * Guillain-Barré syndrome (“GBS”); * chronic inflammatory demyelinating * polyneuropathy (“CIDP”) Respondent. * ******************** *

Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC for Petitioner; Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION1

On November 30, 2017, the parties filed a joint stipulation concerning the petition for compensation filed by Randy O. Harper on September 28, 2016. Petitioner alleged that the influenza vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on October 16, 2014, caused him to suffer Guillain-Barré syndrome and chronic inflammatory demyelinating polyneuropathy. Petitioner further alleges that he suffered the residual effects of these injuries for more than six months. Petitioner represents that there has been no prior award or settlement of a civil action for damages on his behalf as a result of his condition.

1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. Respondent denies that the vaccine caused petitioner’s alleged injuries or any other injury, and denies that petitioner's current disabilities are the result of a vaccine-related injury.

Nevertheless, the parties agree to the joint stipulation, attached hereto. The undersigned finds said stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

Damages awarded in that stipulation include:

a. A lump sum of $1,313,885.49, which amount represents compensation for first year life care expenses ($114,180.01), lost earnings ($937,982.35), pain and suffering ($225,000.00), and past unreimbursable expenses ($36,723.13), in the form of a check payable to petitioner; and

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

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

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 16-1215V according to this decision and the attached stipulation.2

IT IS SO ORDERED.

s/Christian J. Moran Christian J. Moran Special Master

2 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.

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

) RANDY 0 . HARPER, ) ) Petitioner, ) v. ) ) No. 16-1215V SECRETARY OF HEALTH ) Special Master Moran AND HUMAN SERVICES ) ) Respondent. )

STIPULATIO N

The parties hereby stipulate to the following matters:

1. Randy 0 . Harper, 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 vaccine is contained in the Vaccine Injury Table (the

"Table"), 42 C.F.R. § 100.3 (a).

2. Petitioner received his flu immunization on October 16, 2014.

3. The vaccination was administered within the United States.

4. Petitioner alleges that he suffered from Guillain-Barre syndrome ("GBS") and

Chronic Inflammatory Demyclinating Polyneuropathy ("CIDP") as a result ofreceiving the flu

vaccine, and further alleges that he experienced the residual effects of this condition for more

than six months.

S. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on his behalf as a result of his condition. 6. Respondent denies that the flu vaccine caused petitioner to suffer from GBS, CIDP, or

any other injury or his 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 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 payments:

a. A lump sum ofSI,313,885.49, which amount represents compensation for fust year life care expenses ($114,180.01), lost earnings ($937,982.35), pain and suffering ($225,000.00), and past unreimbursable expenses ($36,723.13), in the form of a check payable to petitioner; and

b. 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").

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.

10. The Secretary of Health and Human Services agrees to purchase an annuity contract

2 from the Life Insurance Company for the benefit of petitioner, Randy 0 . Harper, pursuant to

which the Life Insurance Company will agree to make payments periodically to petitioner as

follows :

a. For future unreimbursable AETNA Maximum out of Pocket expenses, beginning on the first anniversary of the date of judgment, an annual amount of$7,150.00 to be paid up to the anniversary of the date of judgment in year 2025, increasing at the rate of five percent (5%), compounded annually from the date of judgment.

b. For future unreimbursable AETNA Premium and Medicare Part B expenses, beginning on the first anniversary of the date of judgment, an annual amount of $7,182.00 to be paid up to the anniversary of the date of judgment in year 2025, increasing at the rate of five percent (5%), compounded annually from the date of judgment.

c. For future unreimbursable Medicare Supplement Plan C and Medicare Part D expenses, beginning on the anniversary of the date ofjudgment in year 2025, an annual amount of $3,733.15 to be paid for the remainder of petitioner's life, increasing at the rate of five percent (5%), compounded annually from the date ofjudgment.

d. For future unreimbursable Alpha Lipoic Acid, Vitamin B, and COQ-10 expenses, beginning on the first anniversary of the date of judgment, an annual amount of $291.15 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 Massage Therapy expenses, beginning on the first anniversary of the date of judgment, an annual amount of $780.00 to be paid up to the anniversary of the date of judgment in year 2020. Thereafter, beginning on the anniversary of the date of judgment in year 2020, an annual amount of $260.00 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment.

f. For future unreimbursable Gel Seat, Universal Cuff, Compression Socks, and Adaptive Clothing expenses, beginning on the first anniversary of the date ofjudgment, an annual amount of $350.00 to be paid up to the second anniversary of the date ofjudgment. Thereafter, beginning on the second anniversary of the date ofjudgment, an annual amount of $300.00 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of four percent (4%), compounded annually from the date ofjudgment.

g. For future unreimbursable Adjustable Bed, Bed Cradle/Foot Support, Lift Chair, Toilet Seat Frame, Pressure Relief Wedge, Rolling Shower Chair, and Fishing Pole Holder expenses, on the anniversary of the date of judgment in year 2022, a lump sum of $455.62. Then, on the anniversary of the date of judgment in year 2027, a lump sum of $1,955.87. Thereafter, beginning on the anniversary of the date of judgment in year

3 2028, an annual amount of $241.15 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of four percent (4%), compounded annually from the date ofjudgment.

h. For future unreimbursable Home Health Aide expenses, beginning on the first anniversary of the date ofjudgment, an annual amount of $43,800.00 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.

i. For future unreimbursable Modified Van expenses, on the anniversary of the date of judgment in year 2027, a lump sum of $50,839.20. Thereafter, beginning on the anniversary of the date of judgment in year 2028, an annual amount of $5,083.92 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of four percent (4%), 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

he, Randy 0 . Harper, 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 Randy 0. Harper'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

4 respect to future annuity payments.

12. As soon as practicable after the entry ofjudgment 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 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 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 his

individual capacity, and on behalf of his 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

5 (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. § 300 aa-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 October 16, 2014, as

alleged by petitioner in a petition for vaccine compensation filed on or about September 28,

2016, in the United States Court of Federal Claims as petition No. 16-1215V.

17. 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.

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.

6 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,

CIDP, or any other injury or his 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 I

I

7 Respectfully submitted,

- AUTHOIU ZED REPRESE NTATIVE OF THE ATTORN EY GENERA L:

~~ ARINE E. REEVES Deputy Director Torts Brnnch Civil Division U.S. Department of Justi ce P.O. Box 146 Benjamin franklin Stat ion Washington, DC 20044-0146

ATTORNEY OF RRCO RD FOR RESPOND ENT:

AIR, .D. DARRYL R. WISHARD Director, Division oflnjury Senior Trial Attorney Compensation Programs Torts Branch Hcnlthcnre Systems Burel\u Civi l Division U.S. Department of Health U.S. Departmen t of Justice and Human Services P.O. Box 146 5600 Fishers Lune Benjamin Franklin Station Pnrklawn Building, Mail Stop I JC-26 Washington, DC 20044-014 6 Rockville, MD 20857 Tel: (202) 6 16-4357

Dnted: