Moore v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: April 21, 2020 Not For Publication

************************* DONNA MOORE, * No. 17-518V * Petitioner, * Special Master Sanders * v. * * SECRETARY OF HEALTH * Stipulation for Award; Influenza (“flu”) AND HUMAN SERVICES, * Vaccine; Guillain-Barré Syndrome (“GBS”) * Respondent. * ************************* Jessica W. Hayes, Murray Law Firm, New Orleans, LA, for Petitioner. Lara A. Englund, United States Department of Justice, Washington, DC, for Respondent.

DECISION1

On April 12, 2017, Donna Moore (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program.2 Pet. at 1, ECF No. 1; 42 U.S.C. §§ 300aa- 10 to -34 (2012). Petitioner alleged that the influenza (“flu”) vaccine she received on October 3, 2014, caused her to develop Guillain-Barré syndrome (“GBS”). See Stip. at 1, ECF No. 49; Pet. at 1. Petitioner further alleged that she experienced the residual effects of her injury for more than six months. Stip. at 1.

On April 21, 2020, the parties filed a stipulation in which they state that a decision should be entered awarding compensation to Petitioner. Id. at 2. Respondent denies that the flu vaccine caused Petitioner’s alleged GBS, or any other injury. Id. at 1–2. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. I find the stipulation reasonable and adopt it as the decision of the Court in awarding damages, on the terms set forth therein.

1 This decision shall be posted on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (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), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the requirements of that provision, such material will be deleted from public access. 2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa- 10 to -34. The parties stipulate that Petitioner shall receive the following compensation:

A lump sum of $60,000.00 in the form of a check payable to [P]etitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

Id. at 2.

I approve the requested amount for Petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3

IT IS SO ORDERED.

s/Herbrina D. Sanders Herbrina D. Sanders Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review.

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

DONNA MOORE, ) ) Petitioner, ) ) V. ) No. 17-518V ) Special Master Herbrina Sanders SECRETARY OF ) HEALTH AND HUMAN SERVICES, ) ) Respondent. )

STIPULATION

The parties hereby stipulate to the following matters:

I. Petitioner Donna Moore ("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 the influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the

"Table"), 42 C.F.R. § 100.3 (a).

2. Petitioner received a flu vaccine on or about October 3, 2014.

3. The vaccine was administered within the United States.

4. Petitioner alleges that the flu vaccine caused her to develop Guillain-Barre Syndrome

("GBS") and that she experienced residual effects of this condition 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 condition.

6. Respondent denies that the vaccine caused or significantly aggravated petitioner's

alleged GBS, or any other injury; and denies that her current condition is a sequelae of a vaccine- related injury. Medical records document that petitioner suffered a viral infection in close

temporal proximity to the onset of her alleged OBS, a more likely cause of OBS.

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-2l(a)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

A lump sum of $60,000.00 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-2 l (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.

I 0. Petitioner and her 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.

2 11. Payment 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-l 5(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

(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 October 3, 2014, as

alleged by petitioner in a petition for vaccine compensation filed on or about April 12, 2017, in

the United States Court of Federal Claims as petition No. l 7-518V.

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.

3 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.

17. This Stipulation shall not be construed as an admission by the United States or the

Secretary of Health and Human Services that the immunization caused petitioner's alleged GBS

or any other injury or her 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 I I I I I I I I I

4 Respectfully submitted,

PETITIONER:

~{~ DONNA MOORE

AITORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER:

t~ ~L__ OF THE AITORNEY GENERAL:

CATHARINEE. REEVES MURRAYL Deputy Director 650 Poy Torts Branch Suite 2150 Civil Division New Orleans, L A ~ :J.Ol.3D U.S. Department of Justice (504) 525-8100 P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: ~ A. ½'t~

TAMARA OVERBY Acting Director, Division of LARA:.EN~ Senior Trial Attorney Lc___ .J

Injury Compensation Programs Torts Branch Healthcare Systems Bureau Civil Division U.S. Department of Health U.S. Department of Justice and Human Services P.O. Box 146 5600 Fishers Lane Benjamin Franklin Station Parklawn Building, Mail Stop 08Nl46B Washington, DC 20044-0146 Rockville, MD 20857 (202) 307-3013