Durand v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 27, 2018
* * * * * * * * * * * * * * * * * * *
JUANA OLGA DURAND as personal *
representative of the Estate of Jorge *
Antonio Durand, * UNPUBLISHED
*
Petitioner, * No. 15-1153V
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Joint Stipulation; Influenza (“Flu”);
AND HUMAN SERVICES, * Guillain-Barre Syndrome (“GBS”);
* Death;
Respondent. *
* * * * * * * * * * * * *
Leah Durant, Law Offices of Leah V. Durant, Washington, DC, for petitioner.
Claudia Gangi, United States Department of Justice, Washington, DC, for respondent.
DECISION ON STIPULATION1
On October 8, 2015, Juana Olga Durant (“Petitioner”) filed a petition for compensation
as the personal representative of the Estate of Jorge Antonio Durand (“Mr. Durand”), pursuant to
the National Vaccine Injury Compensation Program.2 Petitioner alleged that Mr. Durand
suffered from Guillain-Barre Syndrome (“GBS”) as a result of an influenza vaccine he received
on September 10, 2013. Petition at Preamble; Stipulation at ¶¶ 2, 4. Petitioner further alleged
that Mr. Durand’s death was the sequela of his alleged vaccine-related injury. Stipulation at ¶ 4.
On July 27, 2018, the parties filed a joint stipulation (“Stipulation”) in which they stated
that a decision should be entered awarding compensation to petitioner. ECF No. 71. Respondent
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Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision
is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. 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. §§ 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.A. §
300aa.
denies that the influenza immunization caused Mr. Durand’s alleged GBS, any other injury, or
his death. Id. at ¶ 6.
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
compensation to petitioner according to the terms of the joint stipulation attached hereto as
Appendix A.
The joint stipulation awards:
1) A lump sum of $375,000.00 in the form of a check payable to petitioner as legal
representative of the Estate of Jorge Antonio Durand. This amount represents
compensation for all damages that would be available under 42 U.S.C. § 300aa-
15(a).
I find the stipulation reasonable and I adopt it as the decision of the Court in
awarding damages, on the terms set forth therein.
Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with
the terms of the parties’ stipulation.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is 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
_________________________________________
)
JUANA OLGA DURAND as personal )
representative of the Estate of Jorge )
Antonio Durand, )
)
Petitioner, )
) No. 15-1153V
v. ) Special Master Gowen
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Juana Olga Durand (“petitioner”), as personal representative of the Estate of Jorge
Antonio Durand (“Mr. Durand”), deceased, 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 illness and death allegedly related to Mr.
Durand’s receipt of an influenza (“flu”) vaccine.
2. Mr. Durand received the flu vaccine on September 10, 2013.
3. The vaccine was administered within the United States.
4. Petitioner alleges that as a result of receiving the flu vaccine, Mr. Durand suffered
Guillain-Barré Syndrome (“GBS”). Mr. Durand passed away on April 6, 2014. Petitioner
further alleges that Mr. Durand’s death was the sequela of his alleged vaccine-related injury.
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5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on behalf of Mr. Durand as a result of his alleged condition or his death.
6. Respondent denies that the flu vaccine caused Mr. Durand’s alleged GBS, any other
injury, or his death.
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 payment:
A lump sum of $375,000.00 in the form of a check payable to petitioner as legal
representative of the Estate of Jorge Antonio Durand. This amount 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 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,
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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. Payments 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. Petitioner represents that she presently is, or within 90 days of the date of judgment
will become, duly authorized to serve as legal representative of the Estate of Jorge Antonio
Durand under the laws of the State of Florida. No payments pursuant to this Stipulation shall be
made until petitioner provides the Secretary with documentation establishing her appointment as
legal representative of the Estate of Jorge Antonio Durand. If petitioner is not authorized by a
court of competent jurisdiction to serve as legal representative of the Estate Jorge Antonio
Durand at the time a payment pursuant to this Stipulation is to be made, any such payment shall
be paid to the party or parties appointed by a court of competent jurisdiction to serve as legal
representative of the Estate of Jorge Antonio Durand upon submission of written documentation
of such appointment to the Secretary.
13. In return for the payments described in paragraph 8, and any amount awarded
pursuant to paragraph 9, petitioner, in her individual capacity, and as the personal representative
of the Estate of Jorge Antonio Durand, on behalf of Mr. Durand’s 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
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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 Mr. Durand resulting from, or alleged to have resulted from, the flu vaccine
administered on September 10, 2013, as alleged in a Petition filed on October 8, 2015, in the
United States Court of Federal Claims as petition No. 15-1153V.
14. If the 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.
15. 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 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.
16. 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 Mr. Durand’s alleged GBS,
any other injury, or his death.
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17. All rights and obligations of petitioner in her capacity as the legal representative of
the Estate of Jorge Antonio Durand shall apply equally to petitioner’s heirs, executors,
administrators, successors, and/or assigns.
END OF STIPULATION
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