Williams v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-24V (not to be published)

***************************** CAROL WILLIAMS, * * Petitioner, * Filed: February 21, 2020 * v. * Decision by Stipulation; Damages; * Influenza (“Flu”) Vaccine; * Guillain-Barre Syndrome (“GBS”). SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * *****************************

John R. Howie, Jr., Howie Law, PC, Dallas, Tx., for Petitioner.

Glenn A. MacLeod, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On February 13, 2017, Petitioner Carol Williams (“Petitioner”) filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program”).2 Pet., ECF No. 1. Petitioner alleges that she developed Guillain-Barre Syndrome (“GBS”) as a result of receiving an influenza (“flu”) vaccination on January 17, 2013. See Stipulation ¶ 2, 4, dated February 21, 2020 (ECF No. 69); see also Petition.

Respondent denies “that the flu vaccine caused Petitioner to suffer GBS, or any other

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012).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 Decision in its present form will be available. 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.A. ' 300aa- 10-' 300aa-34 (West 1991 & Supp. 2002). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. ' 300aa. injury, and further denies that her current disabilities are a sequela of a vaccine-related injury.” See Stipulation ¶ 6. Nonetheless, both parties, while maintaining their above-stated positions, agreed in a stipulation filed February 21, 2020 that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation. Id. at ¶ 7.

I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The parties have stipulated that petitioner shall receive the following compensation:

1. Lump Sum

A lump sum of $230,255.30, which represents compensation for first year life care expenses ($35,255.30), pain and suffering ($165,000.00), and past unreimbursable expenses ($30,000), In the form of a check payable to petitioner. Stip. ¶ 8.

2. Annuity

The remainder of damages shall be paid in the form of an annuity contract, which shall be purchased as soon as practicable after entry of judgment. Accordingly, pursuant to 42 U.S.C. § 300aa-15(f)(4), I order respondent to purchase, and take ownership of, an annuity contract,3 as described below:

Each Life Insurance Company must meet the following criteria:

1. Have a minimum of $250,000,000 of capital and surplus, exclusive of any mandatory security valuation reserve; and

2. have one of the following ratings from two of the following rating organizations: a) A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s; b) Moody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, 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.

The Secretary of Health and Human Services shall purchase an annuity contract from the Life Insurance Company for the benefit of Petitioner, pursuant to which the Life Insurance Company will agree to make payments periodically to Petitioner as described in paragraph 10 of the attached Stipulation.

3 To satisfy the conditions set forth herein, in respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies. 2 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.4

IT IS SO ORDERED.

s/ Katherine E. Oler Katherine E. Oler Special Master

4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their right to seek review.

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

) CAROL WILLIAMS, ) ) Petitioner, ) V. ) ) No. 16-24V SECRETARY OF HEALTH ) Special Master AND HUMAN SERVICES ) Katherine E. Oler ) Respondent. )

STIPULATION

The parties hereby stipulate to the following matters:

l . Carol Williams, 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 an influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the

"Table"), 42 C.F.R. § 100.3 (a).

2. Petitioner received her flu immunization on or about January 17, 2013.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she suffered Ouillain-Barre Syndrome ("OBS") as a result of

receiving the flu vaccine, and further alleges that she experienced the 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 on her behalf as a result of her condition.

6. Respondent denies that the flu vaccine caused petitioner to suffer OBS, or any other

injury, and further denies that her current disabilities are a sequela 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-2l(a)(l), the Secretary of Health and Human Services will issue ·

the following vaccine compensation payments:

a. A lump sum of$230,255.30, which amount represents compensation for first year life care expenses ($35,255.30), pain and suffering ($165,000.00), and past unreimbursable expenses ($30,000.00), in the form of a check payable to petitioner; and

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").

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: A++, A+, A+g, A+p, A+r, or A+s;

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.

I 0. The Secretary of Health and Human Services agrees to purchase an annuity contract

from the Life Insurance Company for the benefit of petitioner, Carol Williams, pursuant to which

the Life Insurance Company will agree to make payments periodically to petitioner as follows:

a. For future unreimbursable Medicare Part B Deductible expenses, beginning on the first anniversary of the date ofjudgment, an annual amount of$185.00 to be paid for the

2 remainder of petitioner's life, increasing at the rate of five percent (5%), compounded annually from the date of judgment.

b. For future unreimbursable Case Management and YMCA expenses, on the first anniversary of the date of judgment, a lump sum of $1,500.00, increasing at the rate of four percent (4%), compounded annually from the date ofj udgment.

c. For future unreimbursable Physical Therapy and PM&R Mileage, Scooter Maintenance, Adaptive Device, Shoe Allowance, Lift Maintenance, and Adult Diaper expenses, beginning on the first anniversary of the date ofjudgment, an annual amount of $647 .56 to be paid up to the third anniversary of the date of judgment. Thereafter, beginning on the third anniversary of the date ofjudgment, an annual amount of $687.56 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of four percent (4%), compounded annually from the date ofjudgment.

d. For future unreimbursable Personal Care Attendant expenses, beginning on the anniversary of the date of judgment in year 2025, an annual amount of$45,260.00 to be paid for the remainder of petitioner's life, increasing at the rate of four percent ( 4%), 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 IO 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

she, Carol Williams, 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 petitioner'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

3 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

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 ofjudgment 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-2l(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.

13. 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.

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-

l 5(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa-15(g) and (h).

4 16. In return for the payments described in paragraphs 8 and 12, 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. § 300 aa-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 vaccination administered on or about January 17,

2013, as alleged by petitioner in a petition for vaccine compensation filed on or about January 6,

2016, in the United States Court of Federal Claims as petition No. 16-24V.

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. 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.

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

5 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.

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 flu vaccine caused petitioner's alleged OBS, or any

other injury, or any of her current disabilities.

22. 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

6 Respectfully submitted,

PETITIONER:

Q~- ~ CAROL WILLIAMS - ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: ~ ~YGENERAL .,,,.---: ____

RHO LAW,P.C. ,JR. ~ E. REEVES Deputy Director 2608 }::libemia Street Torts Branch Dallas, TX 75204 Civil Division Tel: (214) 622-6340 U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OFTHESECRETARYOFHEALffl RESPONDENT: AND HUMAN SERVICES:

t!_aJ Se~tf>__'1- _ ~//Jf/a, . TAMARA OVERBY GLENN A. JtoiEPD Acting Director, Division of Injury Senior Trial Counsel 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 11 C-26 Washington, DC 20044-0146 Rockville, MD 20857 Tel: (202) 616-4122

Dated: _ _ I J_ 2._l ?.,!)___ _