Lopez v. Secretary of Health and Human Services

Opinion

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

************************* JASMIN A. LOPEZ * No. 17-748V

*

Petitioners, * Special Master Christian J. Moran

*

v. * * Filed: February 14, 2025 SECRETARY OF HEALTH * AND HUMAN SERVICES, *

*

Respondent. *

************************* W. Anthony Stevens, Jr., Law Offices of Louis W. Flynn, Jr. And Associates, East Windsor, CT, for Petitioner; Colleen Clemons Hartley, United States Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION 1

On February 13, 2025, the parties filed a joint stipulation concerning the petition for compensation filed by Jasmin Lopez on June 6, 2017. Petitioner alleged that the influenza and/or tetanus, diphtheria, and pertussis (“Tdap”) vaccines she received on October 16, 2014, which are contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), caused her to suffer from transverse myelitis (“TM”) and/or multiple sclerosis (“MS”). 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.

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), the parties have 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. Any changes will appear in the document posted on the website.

Respondent denies that Ms. Lopez’s alleged TM and/or MS were caused-infact by the flu and/or Tdap vaccines; and denies that the flu and/or Tdap vaccines caused her any other injury or her current condition is a sequelae 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 $39,000.00 to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement; and

B. A lump sum of $1,750.00,2 representing reimbursement of a Medicaid lien for services rendered to petitioner by the State of Connecticut, in the form of a check payable jointly to petitioner and the state of CT, DAS:

State of CT, DAS-Collection Services 450 Columbus Blvd., Suite 1001 Hartford, CT 06103

Reference: LOPEZ, Jasmin 1310548

Petitioners agree to endorse this check to the State of CT, DAS.

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

2 This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Connecticut may have against any individual as a result of any Medicaid payments the Connecticut Program has made to or on behalf of Jasmin A. Lopez as a result of her alleged vaccine-related injury suffered on or about October 16, 2014, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h).

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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.3

IT IS SO ORDERED.

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

3 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

)

JASMIN A. LOPEZ, )

)

Petitioner, )

)

V. ) No. 17-748V ) Special Master Moran

SECRETARY OF ) ECF HEALTH AND HUMAN SERVICES, )

)

Respondent. )

STIPULATION

The parties hereby stipulate to the following matters:

1. Jasmin A. Lopez ("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 her receipt of the

influenza ("flu") vaccination and/or tetanus, diphtheria, and pertussis ("Tdap") vaccination,

which are vaccines contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a).

2. Petitioner received the flu vaccination and Tdap vaccination on October 16, 2014.

3. The vaccines were administered within the United States.

4. Petitioner alleges that she suffered Transverse Myelitis ("TM") and/or Multiple

Sclerosis ("MS") as a result of the flu vaccine and/or Tdap vaccine. Petitioner further alleges

that she experienced the residual effects of these conditions for more than six months.

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

for damages as a result of her conditions.

6. Respondent denies that the flu vaccine and/or the Tdap vaccine caused petitioner's

alleged TM or MS; denies that the flu vaccine and/or the Tdap vaccine caused or significantly

aggravated any injury; and denies that petitioner's current condition is a sequelae of a vaccine-

related 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)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

A. A lump sum of $39,000.00 to be paid through an ACH deposit to petitioner's counsel's IOLT A account for prompt disbursement to petitioner; and

B. A lump sum of$1,750.00, 1 representing reimbursement of a Medicaid lien for services rendered to petitioner by the State of Connecticut, in the form of a check payable jointly to petitioner and the State of CT, DAS:

State of CT, DAS-Collection Services 450 Columbus Blvd., Suite 1001 Hartford, CT 06103

Reference: LOPEZ, Jasmin 1310548

Petitioner agrees to endorse this check to the State of CT, DAS.

These amounts represent compensation for all damages that would be available under 42 U.S.C.

§ 300aa-15(a).

1 This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Connecticut may have against any individual as a result of any Medicaid payments the Connecticut Program has made to or on behalf of Jasmin A. Lopez as a result of her alleged vaccine-related injury suffered on or about October 16, 2014, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h).

9. As soon as practicable after the ently 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)(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.

10. Petitioner and petitioner's 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 entities that provide health services on a pre-paid basis.

11 . Payments made pursuant to paragraph 8 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 unreimbursable 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 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

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(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 and/or Tdap vaccination administered

on October 16, 2014, as alleged by petitioner in a petition for vaccine compensation filed on or

about June 6, 2017, in the United States Court of Federal Claims as petition No. l 7-748V.

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. 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.

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.

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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 and/or the Tdap vaccine caused

petitioner's alleged TM and/or MS, or any other injury or petitioner's 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

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Respectfully submitted,

PETITIONER:

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

, 4J 1. MM\i. PUu-UM,c----_ NS, HEATHER L. PEARLMAN Law Offices of Louis W. Flynn, Jr. Deputy Director and Associates, LLC Torts Branch 9A Pasco Drive Civil Division East Windsor, CT 06088 U.S. Department of Justice (860) 370-9400 P.O. Box 146 Email: astevens@lwflynnlaw.com Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETAfil.Y OF HEALTH RESPONDENT: AND HUMAN SERVICES: j effrey s• ~:~~~I'.~ signed by Jeffrey 5.

Beach -5 Date: 2025.02.0410:22:41 -os·oo· for

CAPT GEORGE REED GRIMES, MD, MPH COLLEEN C. HARTLEY Director, Division of Injury Assistant Director Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station And Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08W-25A (202) 616-3644 Rockville, MD 20857 Email: colleen.hartley@usdoj.gov

Dated: o-zd@lurz.,<