Sipes v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1181V
Filed: September 26, 2019
UNPUBLISHED
JARED SIPES,
Petitioner,
v. Special Processing Unit (SPU); Joint
Stipulation on Damages; Influenza
SECRETARY OF HEALTH (Flu) Vaccine; Guillain-Barre
AND HUMAN SERVICES, Syndrome (GBS)
Respondent.
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On August 31, 2017, Jared Sipes (“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 from Guillain-Barré
syndrome (“GBS”) as a result of an influenza (“flu”) vaccine he received on October 6,
2016. Petition at 1; Stipulation, filed September 26, 2019, at ¶ 4. Petitioner further
alleges that he experienced the residual effects of his GBS for more than six months.
Petition at 1; Stipulation at ¶ 4. The stipulation states that “[t]here is not a
preponderance of evidence demonstrating that petitioner’s GBS is due to a factor
unrelated to his immunization.” Stipulation at ¶ 5.
1
The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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. Because this unpublished decision contains a reasoned explanation for the
action in this case, 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).
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).
Nevertheless, on September 26, 2019, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. The
undersigned 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 $182,785.00, 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 § 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 ST ATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
JARED SIPES,
Petitioner, No. I 7-1 I 81 V
Chief Special Master Dorsey
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Jared Sipes ("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 an influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the
"Table"), 42 C.F.R. § 100.3 (a).
2. Petitioner received a flu vaccine on October 6, 2016.
'
3. The vaccine was administered within the United States.
4. Petitioner sustained the first symptoms or manifestation of onset of Ouillain-Barre
Syndrome ("OBS") within the time period set forth in the Table, and experienced the residual
effects of his OBS for more than six months.
5. There is not a preponderance of evidence demonstrating that petitioner's OBS is
due to a factor unrelated to his immunization.
6. Petitioner represents that there has been no prior award or settlement of a civi I
action for damages on his behalf as a result of his alleged injury.
7. Accordingly, petitioner is entitled to compensation for his OBS under the terms of
the Vaccine Act. Therefore, 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-2 l (a)(l ), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $182,785.00 in the form of a check payable to petitioner. This
amount 1represents compensation for all damages that would be available under 42
U.S.C. § 300aa-l 5(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-2l(a)(l), 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.
I0. Petitioner and his 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, 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.
2
11. Payment made pursuant to paragraph 8 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 attorney's fees and litigation costs, and passed 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-l 5(a) and (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 capacity, and on behalf of his heirs, executors, administrators, successors or assigns,
does forever irr~vocably 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 agre~ments, 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 unsuspec~ed personal injuries to or death of petitioner resulting
from, or alleged to have resulted from, the flu vaccination administered on October 6, 2016, as
alleged in a petition for vaccine compensation filed on or about August 31, 2017, in the United
States Court of Federal Claims as petition No. 17-1181V.
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.
3
15. If the special master fails to issue a decision in complete 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'
settlyment 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 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 OBS or any
other injury or his current condition; however, petitioner has satisfied the Table criteria to
establish entitlement to compensation.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner's heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
I
4
Respectfully submitted,
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
9150 Wilshire Blvd., Suite 241
Beverly Hills, CA 90212-3429
(310) 273-5462 Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
Wad st9`` - i -
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Healthcare Systems Bureau Civil Division
U. S. Department of Health and U. S. Department of Justice
Humans Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 08N 146B Washington, DC 20044-0146
Rockville, MD 20857 (202) 305-1586
5