Wilson v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-0691V Filed: June 26, 2017 UNPUBLISHED

ALBERT WILSON, Special Processing Unit (SPU); Joint Petitioner, Stipulation on Damages; Tetanus v. Diphtheria acellular Pertussis (Tdap) Vaccine; Brachial Neuritis; SECRETARY OF HEALTH AND Parsonage Turner Syndrome. HUMAN SERVICES,

Respondent.

Diana Lynn Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner. Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

On June 13, 2016, Albert Wilson (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that he suffered an injury to his left shoulder, including brachial neuritis (“Parsonage Turner Syndrome”), as a result of a Tetanus Diphtheria acellular Pertussis (“Tdap”) vaccine he received on May 21, 2015. Petition at 1-2; Stipulation, filed June 26, 2017, at ¶ 4. Petitioner further alleges that his injuries have lasted for more than six months. Petition at 2; Stipulation at ¶ 4. “Respondent denies that the Tdap vaccine caused petitioner to suffer brachial neuritis or any other injury or his current condition.” Stipulation at ¶ 6.

Nevertheless, on June 26, 2017, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2 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). finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation:

A lump sum of $71,350.00, in the form of a check payable to petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under 42 U.S.C. § 300aa-15(a). Id.

The undersigned approves the requested amount for petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be 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

ALBERT WILSON, ) ) Petitione1-, ) No. 16-691V ) Chief Special Maste1; v. ) Nora Beth Dorsey ) ECF SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent: ) ~~~~~~~~~~~~~~)

STIPULATION

The pa11ies hereby stipulate to the following matters:

1. Albert Wilson, petitioner, filed a petition for vaccine compensation under the NationaJ ·

Vaccine Injury Compensation Program, 42 U.S.C. § 300aa- t0 to 34 (the "Vaccine Program0 ).

The petition seeks compensation fo1· injuries allegedly related to petitioner's receipt of the

tetanus-diphtheria-acellular pertussis C'Tdap") vaccine, which vaccine is contained in the

Vaccine Injury Table (the "Table''), 42 C.F.R. § I 00.3(a).

2. Petitioner received a Tdap vaccine on or about May 21, 2015.

3. The vaccine was administered within the United States.

4. Petitioner alleges that he suffered Parsonage-Turner Syndrome as the result of his

Tdap vaccination and that he suffered the residual effects of this injury for more than six months.

5. Petitioner rep1·esents that there has been no prior award or settlement of a civil action

for damages on his behalf as a result of his alleged vaccine injury.

6. Respondent denies that the Tdap vaccine caused petitioner to suffet· brachia! neuritis

or any other inju1·y 01' his current condition. 7. Maintaining their above ..stated positions, the pat1ies nevertheless now agree that the

issues between them shall be settled and that a decisi~n should be entered awarding the

compensation described in paragraph 8 of this Stipulation.

8. As soon as practfoable aftei· an ei1try of judgment reflecting a decision consistent with

the terms of this Stipulation, and after petitioner has filed an election to teceive compensation

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

the following vaccine compensation payment:

A lump sum of $71,350.00 in the form of a check payable to petitioner. This amount represents compensation for aJI damages that wou1d 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 flll'ther proceedings before

the special master to award reasonabJe attorneys' fees and costs incur1·ed in proceeding upon this

petition.

10. Petitioner and his attorney represent that they have identified to respondent alJ known

soul'ces of payment for items or services foi· which the Progr·am is not primarily liable under 42

U.S.C. § 300aa-l 5(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.

11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to

paragraph 9 oft~is Stipulation will be made in accordance with 42 U.S.C. § 300aaMl5(i), subject

to the availability of sufficient statutory funds.

2 12. The parties and their attorneys further agree and stipulate that, except for any award

for attorney's fees and litigation costs, 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) ai1d (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 his

individual capa~ity. and on behalf of his hefrs, executors, administrators, successors or assigns,

does forever irrevocably anq unconditionally t'eleaset 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, judgmentst 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 Com1 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 01· death of petitioner t'esulting

from, or alleged to have resulted from, the Tdap vaccination administered on May 21, 2015, as

alleged by petitioner in a petition for vaccine compensation tiled on or about June 13, 2016, in

the United States Court of Federal Claims as petition No. 16-691 V.

14. 1f petitioner should die prior to entry of judgmenti this agreement shall be voidable

upon proper notice to the Coui1 on behalf of either or both of the parties.

15. If the special master fails to issue a decision in complete conformity with the terms

of this Stipulatfon 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 patties'

settlement and this Stipulation shall be voidable at the sole discretion of either party.

3 16. This Stipulation expresses a full and complete negotiated settlement of Jiability and

damages claimed under the National Childhood Vaccine lnjut·y Act of 1986, as amended, except

as otherwise noted in paragraph 9 above. There is absolutely no agreement on the patt of the

patties hereto ti:> make any payment 01' to do any act or thing "other than jg herein expressly stated

and clearly agreed to. The paities fmther agree and understand that the award described in this

Stipulation may reflect a .compromise of the pattie~' respective positions as to liability and/01·

amount of damages, and further, that a change in the nature of the injury 01· condition or in the

items of compensation sought, is not grounds to modify or revise this agreement.

11. 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 Parsonage-

Turner Syndrome or any othel' injury or his current condition.

l 8. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

heirst executorst administrators, successors, and/01· assigns.

END OF STIPULATION

I

4 Respectfully submitted,

PETITIONER:

~µ~ ALBERT WILSON

ATTORNEY OF RECORD FOR AUTHOIUZED REPRESENTATIVE P ITIONER: OF THE ATTORNEY GENERAL:

LNIKAS SEDAR, ESQ. Maglio Chl'istopher & Toale, PA y Director 1605 Main Street, Suite 710 To1ts Branch Washington, D.C. 200006 Civil Division Tel: (888) 952 - 5242 U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044"0146

AUTHORIZED ATTORNEY OF RECORD FOR THE SECR~-i.1.v.a RESPONDENT: HUMANS R

IR, M.D. l#t1At_~~_; 'ALTHEA wALERDAVIS Director, Division of Injury Senior Trial Counsel Compensation Programs Totts Branch Healthcare Systems Bureau Civil Division Health Resources and Services Administration U.S. Department of Justice U.S. Depa1tment of Health and Human Services P.O. Box 146 5600 Fishers Lane Benjamin Franklin Station Parklawn Building, Mail Stop 08N146B Washington, DC 20044·0146 Rockville, MD 20857 (202) 616-05 J5