Wilson v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-521V (not to be published)

************************* DAVID WILSON, as son and personal * representative of the estate of * ESTELLE MALTZ, deceased, * * Special Master Corcoran * Petitioner, * Filed: October 10, 2018 * v. * * Decision by Stipulation; Damages; SECRETARY OF HEALTH * Influenza (“flu”) Vaccine; AND HUMAN SERVICES, * Dermatomyositis. * Respondent. * * *************************

Michael G. McLaren, Black McLaren, et al., PC, Memphis, TN, for Petitioner.

Colleen Clemons Hartley, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On May 21, 2015, David Wilson filed a petition on behalf of his deceased mother, Estelle Maltz, seeking compensation under the National Vaccine Injury Compensation Program.2 ECF No. 1. Petitioner alleges that Ms. Maltz suffered from and ultimately died from dermatomyositis as a result of her October 11, 2012 influenza (“flu”) vaccine. Id. at 1. Respondent initially recommended that Petitioner be denied compensation in his Rule 4(c) Report. See generally ECF

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012).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 Decision 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 whole Decision in its present form will be available. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). No. 20. A hearing was held on February 22, 2018, after which Respondent agreed to participate in settlement negotiations, though he maintained his position that the flu vaccine did not cause Petitioner’s injury and subsequent death. See Stip. at 2, ECF No. 71. The Parties filed a stipulation on October 10, 2018. Id. at 1.

Based upon my own review of the record, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The stipulation awards:

 A lump sum of $225,000.00, in the form of a check payable to Petitioner as legal representative of the Estate of Estelle Maltz.  A lump sum of $127,134.13 representing reimbursement of the state of California Medicaid lien, in the form of a check payable jointly to Petitioner as legal representative of the Estate of Estelle Maltz and to:

Department of Health Care Services Recover Branch – MS 4720 Account No. C90075072A-VAC03 P.O. Box 997421 Sacramento, CA 95899-7421

Stip. at 2. This amount represents compensation for all damages under Section 15(a) of the Act to which Petitioner is entitled.

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.3

IT IS SO ORDERED.

/s/ Brian H. Corcoran Brian H. Corcoran Special Master

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

2 Case 1:15-vv-00521-UNJ Document 71 Filed 10/10/18 Page 1 of 6 Case 1:15-vv-00521-UNJ Document 71 Filed 10/10/18 Page 2 of 6 Case 1:15-vv-00521-UNJ Document 71 Filed 10/10/18 Page 3 of 6 Case 1:15-vv-00521-UNJ Document 71 Filed 10/10/18 Page 4 of 6 Case 1:15-vv-00521-UNJ Document 71 Filed 10/10/18 Page 5 of 6 Case 1:15-vv-00521-UNJ Document 71 Filed 10/10/18 Page 6 of 6