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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1153V
Filed: August 28, 2019
UNPUBLISHED
TARA M. LOHMAN,
Petitioner,
v. Special Processing Unit (SPU); Joint
Stipulation on Damages; Influenza
SECRETARY OF HEALTH AND (Flu) Vaccine; Guillain-Barre
HUMAN SERVICES, Syndrome (GBS)
Respondent.
Justin Glenn Day, Greg Coleman Law, PC, Knoxville, TN, for petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On August 25, 2017, 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 she suffered Guillain-Barre Syndrome (“GBS”) as
a result of an influenza (“flu”) vaccine administered to her on September 19, 2014.
Petition at 1; Stipulation, filed August 27, 2019, at ¶¶ 1-4. Petitioner further alleges that
the vaccine was administered in the United States, that her GBS has persisted for more
than six months, and that there has been no prior award or settlement of a civil action
for damages on her behalf as a result of her condition. Petition at 1-3; Stipulation at
¶¶ 3-5. “Respondent denies that petitioner meets the criteria set forth in the Table for
GBS following the flu vaccine, and denies that the flu vaccine caused petitioner to suffer
GBS or any other injury or condition. ” Stipulation at ¶ 6.
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 Because this unpublished decision contains a reasoned explanation for the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).
2National 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 August 27, 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 $95,000.00 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 STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
TARA M. LOHMAN,
)
)
Petitioner,
) No . 17- ll53V
v.
) Chief Special Master Dorsey
ECF
SECRETARY OF HEALTH AND H UMAN )
SERVICES, ~
_______________Respondent. ))
STIPULATlON
The parties hereby stipulate to the fo llowing matters:
I. Tara M. Lohman, petitioner, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C . §3 00aa-l Oet seq. (the "Vaccine
Program"). The petition seeks compensation for injuries allegedly related to Ms. Lohman's
receipt of the influenza (" flu" ) vaccine, which vaccine is contained in the Vaccine Injury Table
(the "Table"), 42 C.F.R. § I00.3(a).
2. Petitioner received her flu immunization on September 19, 2014.
3. The vaccine was adm inistered within the United States.
4. Petitioner alleges that the flu vaccine caused her to suffer Guillain-Barre Syndrome
("GBS").
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on her behalf as a result of her condition.
6. Respondent denies that petitioner meets the criteria set forth in the Table for GBS
following the flu vaccine, and denies that the flu vaccine caused petitioner to suffer GBS or any
other injury or 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 ofjudgment 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)(I), the Secretary of Health and Human Services will issue
the fo llowing vaccine compensation payment: a lump sum of $95,000.00 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).
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-2 l(a)(l), and an appl ication, 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-l 5(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.
11. Payments 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- I 5(i), subject
to the availability of sufficient statutory fund s.
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 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 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 vaccination administered on or about September
19, 2014, as alleged by petitioner in a petition for vaccine compensation filed on August 25,
2017, in the United States Court of Federal Claims as petition No. 17-11 53V.
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.
I 5. 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'
settlement and this Stipulation shall be voidable at the sole d iscretion of either party.
3
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 alleged GBS or
any other injury or 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
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
' '
Respectfully submitted,
PETITIONER:
r1~m-t . ~
TARA M. LOHMAN
ATTORNEY OF RECORD FOR AUTHORIZF.D REPRSENTATlVE
PETITIONER: OJI~ THE ATTORNEY GENERAL:
THARINE E. REEVES
De~,.,....,,irector
Firsl Tennessee Plaza Torts Branch
800 S. Gay St, Ste. 1100 Civil Division
Knoxville. Tennessee 37902 U.S. Department of Justice
Tel: (865) 247-0080 P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZEJ) REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
TAMARA OVERBY
Acting Director, Division of Injury Senior Trial Attorney
Compensation Programs (DICP) Torts Branch
Healthcare Systems Bureau Civil Division
Health Resomces and Services Administration U.S. Department of Justice
U.S. Department of Health and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 08N 1468 Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 353-1589
Dated:
5