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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1810V
(Not to be published)
*************************
* Special Master Corcoran
JEFFREY L. JOHNSON, *
*
Petitioner, * Filed: September 24, 2019
*
v. *
* Decision by Stipulation; Damages;
SECRETARY OF HEALTH * Guillain-Barré Syndrome;
AND HUMAN SERVICES, * Prevnar 13 Vaccine.
*
Respondent. *
*
*************************
Glen Howard Sturtevant, Jr., Rawls Law Group, Richmond, VA, for Petitioner.
Amy Paula Kokot, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES 1
On November 17, 2017, Jeffrey Johnson filed a petition seeking compensation under the
National Vaccine Injury Compensation Program. 2 ECF No. 1. Mr. Johnson alleged that he
developed Guillain-Barré syndrome (“GBS”) as a result of the pneumococcal (“Prevnar”) vaccine
he received on or about April 28, 2016. Id. at 1.
1
Although not formally designated for publication, this Decision will be posted on the United States 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 published 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 will be available to the public
in its current form. 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”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
Respondent denies that Petitioner’s GBS was caused by the receipt of the Prevnar vaccine.
Nonetheless, both parties, while maintaining their above-stated positions, agreed in a stipulation
filed on September 24, 2019, 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
(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 payment of $185,000.00, in the form of a check payable to Petitioner,
Jeffrey Johnson. This amount represents compensation for all elements of
compensation under Vaccine Act Section 15(a) 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 1:17-vv-01810-UNJ Document 25 Filed 09/24/19 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
JEFFREY L. JOHNSON, )
)
Petitioner, )
) No. 17-1810V (ECF)
V. ) Special Master Corcoran
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
1. Jeffrey L. Johnson, petitioner, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-IO to -34 (the "Vaccine
Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt
of the pneumococcal ("Prevnar") vaccine, which vaccine is contained in the Vaccine Injury
Table (the "Table"), 42 C.F.R. § I00.3(a).
2. Petitioner received a Prevnar vaccination on or about April 28, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that the Prevnar vaccine caused him to develop Guillain-Barre
Syndrome ("GBS"). Petitioner further alleges that he experienced the residual effects of this
injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of his condition.
6. Respondent denies that the Prevnar vaccine administered on or about April 28, 20 I 6,
is the cause of petitioner's alleged GBS and/or any other injury or his current condition.
Case 1:17-vv-01810-UNJ Document 25 Filed 09/24/19 Page 2 of 5
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-2I(a)(I), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $185,000.00 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- I 5(a).
9. As soon as practicable atier 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.
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 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 of this Stipulation, will be made in accordance with 42 U.S.C. § 300aa-
l 5(i), subject to the availability of sufficient statutory funds.
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Case 1:17-vv-01810-UNJ Document 25 Filed 09/24/19 Page 3 of 5
12. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys' fees and litigation costs, and past unreimbursable 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-I S(a) and (d), and subject to the conditions of 42 U.S.C.
§ 300aa- I 5(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in his
individual capacity, and on behalfof his heirs, executors, administrators, successors and/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-lO 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 Prcvnar vaccination administered
on or about April 28, 2016, as alleged by petitioner in a petition for vaccine compensation filed
on or about November 17, 2017, in the United States Court of Federal Claims as petition No. 17-
18 I 0V.
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 complete conformity with the tenns
of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a
3
Case 1:17-vv-01810-UNJ Document 25 Filed 09/24/19 Page 4 of 5
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, 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 Prevnar vaccine caused petitioner's alleged
GBS, or any other injury or his 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
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Case 1:17-vv-01810-UNJ Document 25 Filed 09/24/19 Page 5 of 5
Respectfully submitted,
ATTOR.t~EYOFRECORDFOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF HE ATTORNEY GENERAL:
RINE E. REEVES
Rawls Law Group (Richmond) Deputy Director
211 Rocketts Way Torts Branch
Suite 100 Civil Division
Richmond, VA 23231 U.S. Department of Justice
Tel: (804) 344-0038 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:
TAMARA OVERBY
Acting Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
u.s·. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin franklin Station
Park.lawn Building, Mail Stop 08N l 46B Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202)616-4118
Dated: j/t11'i/iotj
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