Makstell Secretary of Health and Human Services

• Court: United States Court of Federal Claims
• Decided: April 2, 2018
• Docket: 16-1154
• Status: Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1154V (not to be published)

************************* LLOYD MAKSTELL and NADINE * MAKSTELL WHITSETT, as Legal * Representative of the Estate of EDWARD * Special Master Corcoran B. MAKSTELL, Deceased, * * Petitioners, * Filed: February 26, 2018 * v. * * Decision by Stipulation; Damages; SECRETARY OF HEALTH * Influenza (“Flu”) Vaccine; Encephalopathy; AND HUMAN SERVICES, * Death. * Respondent. * * *************************

Otwell Sayers Rankin, B. Dahlenburg Bonar P.S.C, Covington, KY, for Petitioner.

Ryan Daniel Pyles, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On September 16, 2016, Lloyd Makstell and Nadine Makstell Whitsett filed a petition, on behalf of Edward Makstell, deceased, seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioners allege that Mr. Makstell suffered from encephalopathy and related sequelae as a result of his September 18, 2013, influenza (“flu”) vaccine, which ultimately led to his death.

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the ruling will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa- 12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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 whole Decision in its present form will be available. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Respondent denies that the flu vaccine caused Mr. Makstell’s encephalopathy or his death. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed on February 26, 2018) 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 $200,000.00, in the form of a check payable to Petitioners, as legal representatives of the Estate of Edward B. Makstell.

Stipulation ¶ 8. This amount represents compensation for all damages that would be available under Section 15(a) of the Act.

I approve a Vaccine Program award in the requested amount 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.