Robinson v. Secretary of Health and Human Services

Opinion

Sn the Gnited States Court of Federal Claing

OFFICE OF SPECIAL MASTERS No. 19-725V Filed: May 25, 2022

* ok ok Ok Ok Ok Kk OK OK OK OK OK OK SANDERS ROBINSON, * UNPUBLISHED * Petitioner, * Decision on Joint Stipulation; *s Guillain-Barré Syndrome V. * (“GBS”); Tetanus-diptheria- * acellular pertussis (“Tdap’”) SECRETARY OF HEALTH * Vaccine. AND HUMAN SERVICES, ** * Respondent. * * ok ok Ok Ok Ok Kk OK OK OK OK OK OK

Diana L. Stadelnikas, Esq., Maglio Christopher & Toale, Sarasota, FL, for petitioner. Mark K. Hellie, Esg., US Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION! Roth, Special Master:

On May 16, 2019, Sanders Robinson [“Mr. Robinson” or “petitioner’] filed a petition for compensation under the National Vaccine Injury Compensation Program.” Petitioner alleges that he developed Guillain-Barré Syndrome (“GBS”) after receiving a tetanus-diptheria-acellular pertussis (“Tdap”) vaccine on November 28, 2016. Stipulation, filed May 25, 2022, at { 1-4. Respondent denies that the flu vaccine caused petitioner to suffer from GBS, CIDP, any other injury, or his current condition. Stipulation at { 6.

| Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107- 347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will be available to anyone with access to the internet. 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 will be available to the public. /d.

? National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “$” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Nevertheless, the parties have agreed to settle the case. On May 25, 2022, the parties filed a joint stipulation agreeing to settle this case and describing the settlement terms.

Respondent agrees to issue the following payment:

a) A lump sum of $147,512.94, which represents compensation for first-year life care expenses ($46,821.49), pain and suffering ($100,000.00), and past unreimbursable expenses ($691.45) in the form of a check payable to petitioner;

b) An amount sufficient to purchase the annuity contract described in paragraph 10 below, paid to the life insurance company from which the annuity will be purchased (the “Life Insurance Company’).

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

I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance with this decision.?

IT ISSO ORDERED.

s/ Mindy Michaels Roth Mindy Michaels Roth Special Master

> Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review.

2 DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5

IN TH E UNITED STATES COURT OF FEDRRA L CLAIMS

OFFICE OF SPECIAL MASTR S ) SANDERS ROBINSON, ) ) Petitioner, ) Vv. ) ) No. 19-725V SECRETARY OF HEALTH ) Special Master Roth AND HUMAN SERVICES, ) ECF ) Respondent. ) _) STIPULATION

The parties hereby stipulate to the following matters:

1. Sanders Robinson, 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 a tetanus, diphtheria, and acellular pertussis (““Tdap”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).

2. Petitioner received his Tdap vaccination on November 28, 2016.

3. The vaccination was administered within the United States.

4. Petitioner alleges that he suffered from Guillain Barré Syndrome (“GBS”) as a result of receiving the Tdap vaccine, and that he experienced the residual effects of this 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. DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5

6. Respondent denies that the Tdap vaccine caused petitioner to suffer from GBS, CIDP, or any other injury or his current condition.

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 payments:

a. A lump sum of $147,512.94, which amount represents compensation for first year life

care expenses ($46,821.49), pain and suffering ($100,000.00), and past unreimbursable

expenses ($691.45) in the form of a check payable to petitioner;

b. An amount sufficient to purchase the annuity contract described in paragraph 10

below, paid to the life insurance company from which the annuity will be purchased (the

“Life Insurance Company”).

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

9. The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from two of the following rating organizations:

a. A.M. Best Company: At++, A+, At+g, Atp, Atr, or Ats;

b. Moody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aal, or Aaa;

c. Standard and Poor’s Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or AAA;

d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA, AA+, or AAA. DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5

10. The Secretary of Health and Human Services agrees to purchase an annuity contract from the Life Insurance Company for the benefit of petitioner, Sanders Robinson, pursuant to which the Life Insurance Company will agree to make payments periodically to petitioner as follows for the following life care items available under 42 U.S.C. §300aa-15(a).

a. For future unreimbursable Medicare Advantage Drug Deductible, Medicare Part B Premium, Primary Care Physician, Pain Management and Rehabilitation, Neurologist, Urologist, and Neuro-ophthalmologist expenses, on the first anniversary of the date of judgment, a lump sum of $2,527.60, increasing at the rate of three percent (3%), compounded annually from the date of judgment.

b. For future unreimbursable Medicare Part B Deductible expenses, beginning on the anniversary of the date of judgment in year 2024, an annual amount of $233.00 to be paid for the remainder of petitioner’s life, increasing at the rate of three percent (3%), compounded annually from the date of judgment.

c. For future unreimbursable Medicare Supplement and Medicare Part D expenses, beginning on the anniversary of the date of judgment in year 2024, an annual amount of $2,479.68 to be paid for the remainder of petitioner’s life, increasing at the rate of three percent (3%), compounded annually from the date of judgment.

d. For future unreimbursable Podiatrist expenses, beginning on the first anniversary of the date of judgment, an annual amount of $524.00 to be paid for the remainder of petitioner’s life, increasing at the rate of three percent (3%), compounded annually from the date of judgment.

e. For future unreimbursable Physical Therapy Evaluation and Physical Therapy expenses, on the first anniversary of the date of judgment, a lump sum of $520.00, increasing at the rate of three percent (3%), compounded annually from the date of judgment.

f. For future unreimbursable Bed Cane, Gait Belt, Transfer Board, Raised Toilet Seat, Shower Chair, Hand Held Shower, Reacher, TED Hose, and Dressing Aid expenses, on the first anniversary of the date of judgment, a lump sum of $144.18. Thereafter, beginning on the anniversary of the date of judgment in year 2024, an annual amount of $110.85 to be paid for the remainder of petitioner’s life, all amounts increasing at the rate of three percent (3%), compounded annually from the date of judgment.

g. For future unreimbursable Hoyer Sling expenses, beginning on the anniversary of the date of judgment in year 2030, an annual amount of $116.00 to be paid for the remainder of petitioner’s life, increasing at the rate of three percent (3%), compounded annually from the date of judgment. DocuSign Envelope !D: 7AB92469-1088-4E07-92E0-685996CE5CB5

h. For future unreimbursable Scooter, Scooter Battery, Scooter Maintenance, and Scooter Lift expenses, beginning on the first anniversary of the date of judgment, an annual amount of $730.99 to be paid for the remainder of petitioner’s life, increasing at the rate of three percent (3%), compounded annually from the date of judgment. i. For future unreimbursable Ancillary Services, Life Alert, and Home Care expenses, beginning on the first anniversary of the date of judgment, an annual amount of $17,353.90 to be paid up to the anniversary of the date of judgment in year 2027. Then, beginning on the anniversary of the date of judgment in year 2027, an annual amount of $24,891.15 to be paid up to the anniversary of the date of judgment in year 2029. Then, beginning on the anniversary of the date of judgment in year 2029, an annual amount of $23,151.15 to be paid up to the anniversary of the date of judgment in year 2032. Thereafter, beginning on the anniversary of the date of judgment in year 2032, an annual amount of $30,688.40 to be paid for the remainder of petitioner’s life, all amounts increasing at the rate of three percent (3%), compounded annually from the date of judgment. At the sole discretion of the Secretary of Health and Human Services, the periodic payments set forth in paragraph 10 above may be provided to petitioner in monthly, quarterly, annual or other installments. The “annual amounts” set forth above describe only the total yearly sum to be paid to petitioner and do not require that the payment be made in one annual installment. Petitioner will continue to receive the annuity payments from the Life Insurance Company only so long as he, Sanders Robinson, is alive at the time that a particular 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 Sanders Robinson’s death. 11. The annuity contract will be owned solely and exclusively by the Secretary of Health and Human Services and will be purchased as soon as practicable following the entry of a judgment in conformity with this Stipulation. The parties stipulate and agree that the Secretary of Health and Human Services and the United States of America are not responsible for the payment of any sums other than the amounts set forth in paragraph 8 herein and the amounts

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

future annuity payments. Upon the purchase of the annuity contract, the Secretary of Health and Case 1:19-vv-00725-UNJ Document 43 Filed 05/25/22 Page 5 of 8 DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5

Human Services and the United States of America are released from any and all obligations with respect to future annuity payments.

12. 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.

13. Petitioner and his 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.

14. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 12 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds.

15. 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 either immediately or as part of the annuity contract, will be used solely for petitioner’s benefit 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).

16. In return for the payments described in paragraphs 8 and 12, 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 DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5

the Secretary of Health and Human Services from any and al] 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 Tdap vaccination administered on

November 28, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or about May 16, 2019, in the United States Court of Federal Claims as petition No. 19-725V.

17. 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.

18. 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.

19. 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 12 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. DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5

20. Petitioner hereby authorizes respondent to disclose documents filed by petitioner in this case consistent with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of Records, No. 09-15-0056.

21. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the Tdap vaccine caused petitioner’s alleged GBS, CIDP, or any other injury or his current condition.

22. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5

Respectfully submitted,

PETITIONER:

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SANDERS ROBINSON

ATTORNEY OF RECORD FOR

DIANA L.STADELNIKAS Counsel for Petitioner

Maglio Christopher & Toale, PA 1605 Main Street, Suite 710 Sarasota, FL 34236 dstadelnikas@mctlaw.com (888) 952-5242

AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES:

. Digitally signed by George R. George R. Grimes -S14 Grimes -S14

Date: 2022.05.12 17:44:33 -04'00'

CDR GEORGE REED GRIMES, MD, MPH 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: Mar CS 2022 J

AUTHORIED REPRESENTATIVE OF THE ATTORNEY GENERAL:

Hodet Lider yn 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

ATTONEY OF RECORD FOR RESPONDENT:

MARK K. HELLIE

Trial Attorney

Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146

Benjamin Franklin Station Washington, DC 20044-0146 mark.hellie@usdoj.gov

(202) 616-4208