Hayward v. Secretary of Health and Human Services

Opinion

In the Gnited States Court of Federal Clans

OFFICE OF SPECIAL MASTERS

ke RK KK KKK KK KR KK KR KK OK KOK ALAN L. HAYWARD, ** * No. 16-1539V Petitioner, ** Special Master Christian J. Moran Ed V. ** Filed: November 15, 2021 Ed SECRETARY OF HEALTH ** Stipulation; influenza (‘flu’) vaccine; AND HUMAN SERVICES, ** upper extremity weakness; significant ** loss of strength in arm. Ed Respondent. ** ke eK KK KK KKK KK KK KK KKK KOK

Richard H. Moeller, Moore, Heffernan, et al., Sioux City, IA, for Petitioner; Dhairya D. Jani, United States Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION'

On November 15, 2021, the parties filed a joint stipulation concerning the petition for compensation filed by Alan Hayward on November 17, 2016. Petitioner alleged that the influenza (“flu”) vaccine he received on November 20, 2013, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), caused him to develop left upper extremity weakness and significant loss of strength in his left arm and forearm. Petitioner further alleges that he suffered the residual effects of this injury 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.

' 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 to suffer the alleged injuries or any other 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 lump sum payment of $35,750.00 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-15(a).

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment according to this decision and the attached stipulation.”

IT IS SO ORDERED.

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

* 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.

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

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*

ALAN L. HAYWARD, *

*

Petitioner, *

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v. * No. 16-1539V (ECF) * SPECIAL MASTER * CHRISTIAN J. MORAN SECRETARY OF HEALTH * AND HUMAN SERVICES, +

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Respondent. * SKK EERE RE EEHE K K *

STIPULATION

The parties hereby stipulate to the following matters:

1. Alan L. Hayward, 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 “Table”), 42 C.F.R. § 100.3 (a).

2. Petitioner received the flu vaccine on November 20, 2013.

3. The vaccination was administered within the United States.

4. Petitioner alleges that he developed left upper extremity weakness and significant loss of strength in his left arm and forearm, as a result of receiving the flu vaccine, and suffered the residual effects of this alleged 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 his behalf as a result of his condition.

6. Respondent denies that the flu vaccine caused petitioner’s alleged left upper extremity weakness and significant loss of strength in his left arm and forearm or any other injury.

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 payment:

A lump sum of $35,750.00 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-15(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-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.

10. Petitioner and his 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 under 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- 15(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 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-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h).

13. In return for the payments described in paragraphs 8 and 9, 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 (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 flu vaccination administered on November 20, 2013, as alleged by petitioner in a petition for vaccine compensation filed on or about November 17, 2016, in the United States Court of Federal Claims as petition No. 16-1539V.

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 parties.

15, Ifthe 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.

16. 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 9 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.

17. This Stipulation shail not be construed as an admission by the United States or the Secretary of Health and Human Services that the flu vaccine caused petitioner to suffer left upper extremity weakness and significant loss of strength in his arm and forearm, or any other injury or his current 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

Me RR,

Respectfully submitted,

PETITIONER:

AL.

ATTORNEY OF RECORD FOR PETITIONER:

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RICHARD H. MOELLER Counsel for icerrma| Moore, Corbett, Heffernan, Moeller & Meis, L.L.P. 501 Pierce Street, Suite 300 P.O. Box 3207 Sioux City, LA 51102 712-252-0020 RMoeller@moorecorbett.com

AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES:

AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL:

or LIAN —— HEATHER L. PEARLMAN 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:

Dh Dake Wheshler, ON Se, ALPEN, fer anne L Dew Nn —~

TAMARA OVERBY

Acting Director, Division of Injury Compensation Programs

Health Systems Bureau

Health Resources and Services Administration

U.S. Department of Health and Human Services

5600 Fishers Lane, 08N146B

Rockville, MD 20857

Dated: ul islear)

DHAIRYA D. JANI

Trial Attorney

Torts Branch, Civil Division U.S, Department of Justice

P.O. Box 146

Benjamin Franklin Station Washington, DC 20044-0146 202-616-4356

Email: Dhairya.Jani@usdoj.gov