Pearson v. Secretary of Health and Human Services ( 2021 )

In the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-350V
(not to be published)
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KRISTINA PEARSON,
Filed: June 16, 2021
Petitioner,
V.
Decision by Stipulation; Damages;
Influenza (“Flu”) Vaccine; Transverse
SECRETARY OF HEALTH AND Myelitis (“TM”).
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HUMAN SERVICES, :
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Respondent. *
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Glen H. Sturtevant, Jr., Rawls Law Group, Richmond, VA, for Petitioner
Mark K. Hellie, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON JOINT STIPULATION!
On March 27, 2020, Kristina Pearson (“Petitioner”) filed a petition, seeking compensation
under the National Vaccine Injury Compensation Program (“the Vaccine Program”).” Pet., ECF
No. 1. Petitioner alleges she suffered from transverse myelitis (“TM”) as a result of the influenza
(“flu”) vaccination she received on October 11, 2018. See Stipulation { 2, 4, dated June 15, 2021
(ECF No. 38); see also Petition.
Respondent denies “that the flu vaccine caused petitioner’s alleged TM or any other injury
' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted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 Decision in its present form will be available. Jd.
* The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
or her current condition.” See Stipulation § 6. Nonetheless, both parties, while maintaining their
above-stated positions, agreed in a stipulation filed June 15, 2021 that the issues before them can
be settled and that a decision should be entered awarding Petitioner compensation.
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 stipulation awards:
a lump sum of $190,000.00 in the form of a check payable to petitioner.
Stipulation 8. This award represents compensation for all damages that would be available under
42 U.S.C. § 300aa-15(a).
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.*
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
> Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice
renouncing their right to seek review.
Jn the Gnited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
KRISTINA PEARSON,
Petitioner,
Case No. 20-350V (ECF)
V. CHIEF SPECIAL MASTER
CORCORAN
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Kristina Pearson, 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 the influenza (“flu”) vaccine, which is a vaccine contained in the
Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).
2. Petitioner received the flu vaccine on October 11, 2018.
3. The vaccination was administered within the United States.
4, Petitioner alleges that she sustained transverse myelitis (“TM”) that was
caused by her receipt of the flu vaccine and alleges that she experienced the residual
effects of this injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement ofa
civil action for damages on her behalf as a result of her alleged injuries.
6. Respondent denies that the flu vaccine caused petitioner’s alleged TM or
any other injury or her current condition.
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 $190,000.00 in the form ofa check payable to petitioner. 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 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 compensation to be provided
pursuant to this Stipulation is not for any items or services for which the Program is not
primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made
or can reasonably be expected to be made under any State compensation programs,
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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 by entities that provide health services
on a pre-paid basis.
11. | Payment made pursuant to paragraph 8 of this Stipulation and any amounts
awarded pursuant to paragraph 9 of this Stipulation 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, and past unreimbursed expenses, 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 USC.§ 300aa-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, 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 an and duran 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 vaccination administered on October 11, 2018, as alleged by
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petitioner in a petition for vaccine compensation filed on or about March 27, 2020, in the
United States Court of Federal Claims as petition No. 20-350V.
14. 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.
15. If the special master fails to issue a decision in compkte 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.
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 to do any act or thing
other than is herein expressly stated and clearly agreed to. The parties firther 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 TM or any other injury or her current condition.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner’s heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
Jun 09 21, 01:16p
Respectfully submitted,
PETITIONER:
Mirtiv, Laon
KRISTINA PEARSON
ATTORNEY OF RECORD FOR
PETITIONER:
Mint sLentevar-
GLEN H. STURTEVANT
Counsel for Petitioner
Rawls Law Group
211 Rocketts Way, Suite 100
Richmond, VA 23231
gsturtevant@rawblawgroup.com
(804) 622-0675
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Dale Wheklar, PNSc, WS, APL, for
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Healthcare Systems Bureau
Health Resources and
Services Administration
U.S. Department of Heath and
Human Services
5600 Fishers Lane, 08N146B
Rockville. MD 20857
Dated O6/iS}Z07. |
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AUTHORIED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
dt Osthud Ge on SWI
HEATHER L. PEARLMAN
Acting Deputy Director
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTONEY OF RECORD FOR
RESPONDENT:
Hour |C Neeley
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MARK K. HELLIE
Trial Attorney
Torts Branch, Civil Divsion
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
mark.hellie@ usdoj. gov
(202) 616-4208