Kelleher v. Secretary of Health and Human Services ( 2022 )

Sn the Gunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: January 26, 2022
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THOMAS P. KELLEHER, * UNPUBLISHED
*
Petitioner, * No. 16-1307V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Decision Based on Stipulation;
AND HUMAN SERVICES, * Influenza (“Flu”) Vaccine;
* Guillain Barré Syndrome (“GBS”).
Respondent. *
*
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Nancy R. Meyers, Turning Point Litigation, Greensboro, NC, for petitioner.
Ronalda E. Kosh, U.S. Department of Justice, Washington, DC, for respondent.
DECISION BASED ON STIPULATION!
On October 11, 2016, Thomas P. Kelleher (“petitioner”) filed a petition in the National
Vaccine Injury Compensation Program.” Petitioner alleged that as a result of an influenza (“flu”)
vaccine administered on December 29, 2015, he developed Guillain Barré syndrome (“GBS”).
Petition at 1 (ECF No. 1).
On January 25, 2022, the parties filed a stipulation recommending an award of
compensation to petitioner. Stipulation (ECF No. 62). Respondent denies that the flu vaccine
' Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is required 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). This means the Decision will
be available to anyone with access to the Internet. 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.
* 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. § 300aa.
caused petitioner’s GBS, or any other injury; and denies his current condition is a sequelae of a
vaccine-related injury. 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 compensation:
A lump sum of $85,000.00 in the form of a check payable to petitioner.
This amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a). Stipulation at J 8.
The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.*
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
> 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 THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
THOMAS P. KELLEHER, )
)
)
Petitioner, )
) No. 16-1307V
Vv. ) Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Thomas P. Kelleher (“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 an injury allegedly related to petitioner’s receipt
of the influenza (‘flu’) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42
C.F.R. § 100.3(a).
2. Petitioner received the flu vaccine on December 29, 2015.
3. The vaccine was administered in the United States.
4. Petitioner alleges that he suffered from Guillain-Barré syndrome (“GBS”) as a result
of receiving the flu vaccine, and that he experienced the residual effects of this injury for more
than six months.
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5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of his alleged condition.
6. Respondent denies that flu vaccine caused petitioner to suffer from GBS, or any other
injury; and denies that his current condition is a sequelae of a vaccine-related injury.
7. Maintaming 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 payment:
A lump sum of $85,000.00, in the form of a check payable to petitioner, which
represents compensation for all damages that would 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-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.
10. 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
2 of 5
seq.)), or entities that provide health services on a pre-paid basis.
11. Payment made pursuant to paragraph 8 of this Stipulation, and any amount awarded
pursuant to paragraph 9, will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the
availability of sufficient statutory funds.
12. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys’ 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) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h).
13. In return for the payments described in paragraph 8, and any amount awarded
pursuant to paragraph 9, 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 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. § 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 flu vaccine
administered on December 29, 2015, as alleged in a Petition filed on October 11, 2016, in the
United States Court of Federal Claims as petition No. 16-1307V.
14. If petitioner should die prior to entry of judgment, this agreement shall be voidable
upon proper notice of the Court on behalf of either or both of the parties.
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15. Ifthe special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the United States 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.
16. 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 9 above. There is absolutely no agreement on the part of the
parties hereto to make any payment or do any act or thing other than is herein expressly stated
and clearly agreedto. 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.
17. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the flu vaccine caused petitioner’s alleged GBS, or
any other injury.
18. All rights and obligations of petitioner shall apply equally to petitioner’s heirs,
executors, admmistrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully submitted,
PETITIONER:
THOMAS KELLEHER
ATTORNEY OF RECORD FOR
PETITIONER:
Greensboro, NC 27401
Telephone: 336.645.3320
Fax: 336.645.3330
nmyers@turningpointlit.com
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Dale Wushler., PN Sc, APL, for
CDR GEORGE REED GRIMES, M.D.!
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
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Dated: o] lex hozz
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AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
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
ATTORNEY OF RECORD FOR
RESPONDENT:
Lonalda € beh
RONALDA E. KOSH
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ronalda.kosh@usdoj. gov
(202) 616-4476
ees N/——