Neeley v. Secretary of Health and Human Services

• Court: United States Court of Federal Claims
• Decided: August 15, 2017
• Docket: 16-251
• Status: Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: July 19, 2017

* * * * * * * * * * * * * ELIZABETH NEELEY, * UNPUBLISHED * Petitioner, * No. 16-251V * v. * Special Master Gowen * SECRETARY OF HEALTH * Joint Stipulation; Haemophilus AND HUMAN SERVICES, * Influenzae Type B (“Hib”), * Hepatitis A, Hepatitis B, and Respondent. * Tetanus-Diphtheria-Acellular * Pertussis (“TDaP”) Vaccinations; * * * * * * * * * * * * * Guillain-Barré Syndrome (“GBS”).

Michael G. McLaren, Black McLaren, et al., PC, Memphis, TN, for petitioner. Amy P. Kokot, United States Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1

On February 23, 2016, Elizabeth Neeley (“petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to 34 (2012).2 Petitioner received the haemophilus influenzae type B (“Hib”), hepatitis A, hepatitis B, and tetanus-diphtheria-acellular pertussis (“TDaP”) vaccinations on or about February 20, 2015. Petitioner alleges that these vaccinations caused her to develop Guillain-Barré Syndrome (“GBS”) and/ or other neurological and physical impairments, with residual effects lasting for more than six months.

1 Because this decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the website of the United States Court of Federal Claims, pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012). The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website. Id.

2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. On July 18, 2017, the parties filed a stipulation in which they state that a decision should be entered awarded compensation to petitioner. Joint Stipulation (ECF No. 38). Respondent denies that the aforementioned vaccines are the cause of petitioner’s alleged GBS and/ or any other injury or her current condition. Id. at ¶ 6. Nevertheless, the parties agree to the joint stipulation attached hereto as Appendix A. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

The parties stipulate that petitioner shall receive the following in compensation:

1) A lump sum of $132,656.35, which amount represents compensation for first- year life care expenses ($12,656.35) and pain and suffering and past unreimbursable expenses ($120,000.00) in the form of a check payable to petitioner, Elizabeth Neeley.

2) An amount sufficient to purchase the annuity contract described in paragraph 10 of the stipulation attached hereto as Appendix A, paid to the life insurance company from which the annuity will be purchased (the “Life Insurance Company”).

Joint Stipulation at ¶ 8. These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

The undersigned approves the requested amount for petitioner’s compensation. Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3

IT IS SO ORDERED.

s/Thomas L. Gowen Thomas L. Gowen 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. IN TlI.E UNlTED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

) BLIZABETH NE:ELEY, ) ) Petitioner, ) ) No. 16-25 t V (ECF) v. ) Speciai Master Gowen ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. } ~~~~~~---'-'--~~~~~~)

SIJ.P!JLATION The parties hereby stipulate to the followi11g matters:

I. Elizaberh Neeley, petitioner, filed a petitio11 for vaccine com1Jcnsation 11.ndcr the

Nat.ional Vaccine injury Compensation Program, 4/. U.S .C. §§ 30-0aa- IOto ~34 (lhe ''Vaccine

Program"). The petition seeks colllpensmion fer injuries allegedly related to petitioner's receipt

of the Hacmophilus jnflucnz.ac type b ("Hib.'), hepatilis A, hepatitis B, anti/or tctnnus-diphtheria-

.ncellular pertussis {''Td~p'") vaccines, which vaccines are contained in the Vaccine Injury Table

(the ·'Table"), 42 C.f.R. § !00.3(a).

2. Petitioner received I-lib, hepatitis A, hepatitis B, and Tdop vaccinati0ns on or about

February 20, 20 15. 1

3. The vaccines were a

4. Petitioner alleges that Ule Hib, hcpaticis A, hepatitis B, ahd/or Tdap vaccines caused

her to develop Gui llain-Barr~ Syndrome ("GBS,,) and/or other neurological and physical

Petitioner :ilso received the Pncumovax v.accin~, which is not covc:red under the Progrnm . imptti1m~nts_ Petitioner further alleges thnt she experienced the l'CSiduiil effects ()f these injuries

for more than si1o; monlhs.

S. Petitioner represel1ts that there has been no pri(lr award or settlement of n civil action

for damages as a result of her condition.

6. Respondent denies that tile Hib, hepatitis A. hepatitii: A, andfor Tdap vaccines

aronry 20, ?.O l S, (Ire the cause of petitioner's alleged GBS 11nd/ol' tiny

otlm· injury or her cun:ent condition.

7. Maintaining their above-stated positions 1 the pm1lcs nevertheless now agree that the

issues between them shall be settled and that a decision should b: entered awarding the

compensation described in paragrnph 8 of this Stipulation.

8. As soon as practic.able aft.er :t1i entry <>f judgme1ll reflec ting a decision consistent with

lhe terrns of tbis StipuJalion, and after pctitior\er has filed an election to receive compcllSalim1

pursuant to 42 U.S.C. § 300:aa-2 l (a)( I). the Secretary of Health and Human Services will issue

the following vaccl11c compen saLion payments:

a. A lump sum of$ I 32,656.35, which amount represents coinpcnsaiion for first-yeaJ' life-care expenses ($12.,656.35) and pain and suffering and past unreimbursable expenses ($120,000.00) in the form ofo check payable to petitioner~ and

l>. An amount sufficient to purchase the a1111uity contract dcscrihed in paragraph I 0 below, paid to the life insurnncc company from which the nnnuily will be ptuchased (the ''Ute Insurance Company'').

9. Th1; Life Insurance Company must have a minimum of$250,000,000 capital and

surpluS,, exclusive of t1 11y mandatory secmity Vllluation reserve. The Life J11sura.11ce Company

must have one ofthc following ratings from two oftlic following rating organizations:

IL A.M. Best Comp&ny: A-+ +. A+, A·r·g. A+p, A+r, or A+s;

h. Moody's lrwestor Service Claims Paying Ralinir A a31 Aa2, Aa 1, or Aau;

2 c. Standard and roor's Corpora1iot1 \nsurer Claims-Paying Ability Rating: AA~, AA, AA+, ()r AAA;

d. Fitch Credi! l~ating Company, Insurance Com pally Claims Paying Abilhy Racing: /\A -, AA, AA+, or /\/\A,

l 0. The Secretary of Heallh and Human Services agrees 10 pt1rch£1se an annl1ity co11tract

from the Lite lnsuronce Company for the bc.nefit of peti1ioner, Elizabeth Neeley, pursuant 10

which the Li fc Insurance Company will agree lo make payments pcricdically to petitioner as

follows:

a. For future unreimbur.s11ble Medigap expenses, bcginn ing on the first anni versary of the date ofjlldgmeot, all annual amount of$2,445.0(l to be paid for the remainder of petition.:l''S life.. incr~io g :ll lhe rate ( ) f five percent (5%), cornpotmded annually from the date ofjud~ment

b. For full1fe unreimbursabJe Walker. Shower Chuir, WhcelchairiScootcr Mnintenance, and Medical Alcrc expenses, beginning on the first anniversary of the date CJfjudgment, nn annual nmount of$589.S9 to be paid for the remainde1· of petitioner's life, increasing at the rate of four percent (4%), compounded annually from the da1e ofjudgment.

c, For folure unrcimbur.sable Scooter and Scooter Lift cxpcnsc.s, on the annivers«ry of the date ofJudgmc.nr in year 2020, a lump sum of $2, l 99.QO. Thercaflcr, beginning on the anniversary of Che dale of judgment in year 202 1, an annual amount of$ I7 I.29 to be paid for the remaindc, of' petitioner's life, all a1noums increasing at the rate of four percent (4%). compounded airnually fron1 the date of judgment.

d. For future unreirnhursal;ile Attendant Care expenses, begi1u1ing on th ~ first nnniversary of the dote ofj udgment, un ;ummtl amourll of $6,552.00 to be (:'!lid up to the anniversary of the dnte ofjudgmt:nt in yea!' 2025. Thcrc.af\er, beginning (.)JI the a11nivcrsary .of the date of j udgm ent in year 1025, an :innual mnou ut of $10,920.00 to be paid for the remainder ofpet~tioner's life, all amounts increasing at the rate of fo ur percent (4%). compounded annually from the date of j udgn1e.nt.

At the sole discretion of the Secretary of Health and I luman Services, chc periodic

payments set forth in porngraph 10 <1bovc. rnny be provided to petitioner in momhly, quarterly,

annual or otl)et inslallments. The "annuli! amounts" ::;ct forth above describe only the total yearly

~urn to be puid to petitioner and do not require tha.1 the payment be made in one 11nnnal

3 installment. Petitioner will continue 10 receive lhe annui ty payments from the Li fe Insurance

Company only so long us she, Eliwb~lh Neeley, is nlive at the time that a panicutnr 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 Elizabeth Neeley' s death.

l l. The annuity co1,tracl will be owned solely and ex.cl1.1 stvely by the Secretary of Heaith

and Human Services and will be purchased as soon ns practicable followi ng the entry ofa

judgtTicnl in conformity with this Stipulation. The pariies stipulate and agree that the Sccrctnry

of Health and Human Services and lhe United States of America arc not responsible for tht:

pnymcnt of any sums other lhnn the amounts set forth in paragraph 8 herein and the amounts

awarded pursuant to paragraph 12 herein, and 1hat they do not guarantee or insure any of the

future annuity payments. Upon the purchase of the an!luity contract, t'ne SecretMy of HeaUh and

Human Services and the United States of America are released from any and all obligations with

respect to foture annuity payment:;.

12. As soon as prncticable after 1bc entry ofjudgment on entitlement in this c:nse. :;inc

aftc:r pclitio11er hus filed both a proper and timel y dcction to receive compensatio11 purnuanc to

42 U.S.C. § 300fla-2 1(a)( I ). ond un application, the parli~s will submit to further proceedings

before the special mnsler toaward reasonable attorneys' fees and costs incurred in proceeding upon this petition.

IJ . Petitioner and Iler attorney represent that they have idemif!cd to respondent all

known sources (Jf paymc:nt for Items or services for which the Program 1s not piimnrily liable

under 42 U.S.C. § 300aa- I S(g), including State compensation programs, insurarlct! p<)licics,

Federal or State health benefits programs (otller than Title XIX of the Social Security Act (42

U.S.C. § 1396 ct seq.)), or entities chm provide hca.lth serYices on a. p1~·p:1id basis.

4 14. Paymt!nt rnadc pursuant to paragraph 8 of this Stipulation) and any amount awarded

pursuant to patagra1lh 12 of this Stipulation, will be mnde in accordnncc with 42 U.S.C. § 300aa-

I S(i), subject to the availability of sufficient Statutofy funds.

15. Tue parties and their attomeys further agree and stipulate lhat, except for any award

for attorneys' fees and litigation costs, and past unrcimbursable expenses, the money provided

pursuant to this Stipulation will be used solely for the b¢nefit of petitioner ;is contemplated by 11

strict construction of 42 U.S.C. § 300aa- I 5(a) and (d}, and subjccl to the c:ondith>n.s of 42 U.S.C.

§ 300aa· 15(g) ancl (h).

! 6. In retu(n for. the payments described in paragraphs Kand I 2, petitioner, in her

individual capacity, and on behalf of her heirs, executors, l\dministrntor1>, successors nnd/or

assigns, docs forever irrevocably and unconditionally release, acquil and discboq~e the United

Stites and the Sccrecary of Health and Human Services from any and all aclio!ls 01· c0uses of

action (including agree111e11L<;., ju

dcmancls of whatCV!!;r kind or nature} that have bceu broughr, could have been brought, or oould

be timely brought in the Cou11 of Fl!deral Claims. under the National Vaccine Injury

Compensation Progruro, 42 U.S.C. § 300na.- 10 c:t seq., on account of, or in any way growing out

or, nny and all known or unknown, suspected or unsuspccled personal injuries to or death of pctitio1\er resulting from, or alle.ged to have resulted from, the Hiu, hepatitis A, hepatitis B,

end/or Tdap vaccinations administered on or about february 20, 2015, as alleged by pc:thioncr in

a petition for. va~ine compc11smio11 filed on or aboul Ft:bruary 23, 2016 i11 the Uniteti States

Court of Federal Claims as petition No. 16-251 V.

17. If petitioner shoul

upou proper 1101ice to rhe Court on behalf of cithet· or both ofttic pa11ies.

5 18. If the special master fails lo issue a dce\sion ln complete conformity ·with the 1en11s

of this Stipulation or if the Cou11 of Federal Claims fails to en\er judgment in conformity with a

decision that is in complete conforn1ity with the lerms o f lhis Stipulation, then the parties'

selllemen\ a11d this Sliptalation shalt be voidable nt the sole discretion o f e ither parcy.

19. This Stipu la\ion expre~ses a full nnd complete negotiated se11ie1neol of liability and

damages claimed under the National Chlldhood Vaccine Injury Acl of 1986, except as otherwise

noted lo paragraph 12 above. There is absolutely no agreement on the part of the parties hereto

co make any pnymeu t or to do any act o.- thing other than is herein expressly state d and clearly

agreed to. The µanie~ further agree and understand that the award deocribcd in this Stipulation

may reflect n cornprnmisc of the p11rtics' respective positiom os to liability anJ/vr amount of

dninf.lges, and further, that a cJmnge in lhe nature of the irtjury or condition or in the items of

compensntion sought, is not grounds to modify or revise this agreement

20. Petitioner hereby a uthorizes respondent to disclose documents filed by petitioner in

this case co1\Sistent with the Privacy Acl and the routine uses described in the National Vaccine

Injury Compensatio n Program Sys1e1n of Record s, No. 09~ 1 5 ~0056 .

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

Secretary of Health and Human Services that lhc Hib, hepatitis A, hepatitis B, and/or Tdap vaccines caused petitioner's alleged GSS, or nny other i1ljury or her currenl condltlon.

22. A ll rights and obligations of pe!Tlioner hereunder shall apply equally to petitioner's

heirs, executors, administrators, successors, and/or assig.ns.

END Of STIPULATION

I

6 Respectfully submitted,

PETITIONER:

ATTORNEY OF RECORD FOR AUTHOHlZED REPRESENTATlVE PETITIONER: OF nm ATTORNRY GENERAL:

MIC~G~/(~~~FS

ATTORNEY OF RECORD FOR RESPONDENT:

NARA 1\ AJR. M.D. Director, Division oflnjury ~~&J:;f~~~~- Trial Altorney Compensation Pmgrams Tort~ Bi·nnch Healthcare Systems Bv1'C11t1 Civil Division U.S. Department of Health U.S. Departtncnt of Justice tmd Human Service$ P.O. Box 146 5600 fishers Lane Benjmn in Franklin Stntion Park lawn Building, Mail Stop 08Nl46B Washington. DC 20044-0146 Rockville. MO 20857 Te l: {202) 616·4 I l S

Dated: q/J.tf;j.;