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

Sn the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-906V
Filed: October 1, 2021
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CATHERINE M. RABY,
UNPUBLISHED
Petitioner,
V. Decision on Joint Stipulation;
Guillain-Barre Syndrome (“GBS”);
SECRETARY OF HEALTH Prevnar 13 Vaccine
AND HUMAN SERVICES,
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Respondent.
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Nancy Meyers, Esq., Turning Point Litigation, Greensboro, NC, for petitioner.
Christine Becer, Esq., US Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION!
Roth, Special Master:
On June 25, 2018, Catherine Raby [“Ms. Raby” or “petitioner”] filed a petition for
compensation under the National Vaccine Injury Compensation Program.’ Petitioner alleges that
she suffered from Guillain-Barre Syndrome (“GBS”) after receiving an Prevnar 13 vaccination on
June 2, 2016. Stipulation, filed Sep. 30, 2021 at {| 1-4. Respondent denies that the immunization
caused petitioner’s injury. Stipulation at 6.
Nevertheless, the parties have agreed to settle the case. On September 30, 2021, the parties
filed a joint stipulation agreeing to settle this case and describing the settlement terms.
! Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347,
116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will
be available to anyone with access to the internet. 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 whole Decision will be available to the public. /d.
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).
Respondent agrees to issue the following payment:
A lump sum of $85,000.00 in the form of a check payable to petitioner, Catherine
Raby. This amount represents compensation for all damages that would be available
under § 300aa-15(a).
I adopt the parties’ stipulation attached hereto, and award compensation in the amount and
on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance
with this decision.?
IT ISSO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
> Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
CATHERINE M. RABY, )
)
Petitioner, )
) No. 18-906V
V. ) Special Master Roth
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Catherine M. Raby, 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 Prevnar 13 vaccine, which vaccine is contained in the Vaccine Injury Table (the
“Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received the Prevnar 13 vaccine on June 2, 2016.
3. The vaccine was administered within the United States.
4. The petition alleges that petitioner’s Prevnar 13 vaccine caused her to suffer from
Guillain-Barre syndrome (“GBS”) and that she experienced the residual effects of this
condition for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil
action for damages arising out of the alleged vaccine injury.
6. Respondent denies that the Prevnar 13 vaccine caused petitioner’s alleged GBS or
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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 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 $85,000.00 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-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 any
proceeding upon this petition.
10. Petitioner and petitioner’s 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,
and 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).
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11. Payment(s) 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 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-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
petitioner’s individual capacity, and on behalf of petitioner’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
have been brought, or could be timely brought in the United States 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 vaccination as alleged by petitioner in a petition for vaccine compensation
filed on or about June 25, 2018, in the United States Court of Federal Claims as petition No.
18-906.
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.
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15. 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.
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 vaccine caused petitioner’s alleged injury or
any other injury or petitioner’s 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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Respectfully submitted,
PETITIONER:
CATHERINE M. RABY
ATTORNEY OF RECORD FOR
PETITIONER:
A AE_Ox~rnNv2,
NANCY R.(MMERS
300 N. Greene St., Suite 2000
Greensboro, NC 27401
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Date Whshler, Date fo
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Healthcare Systems Bureau
Health Resources and Services
Administration
U.S. Department of Health
and Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
Dated: 69/2! [202 |
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AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
Yoo pwy—
EARLMAN
HEATHER L.
Deputy Directo
Torts Branch, Givil Division
US. of Justice
P.O. Box 146
Benjamin F in Station
Washington, DG 20044-0146
ATTORNEY F RECORD FOR
RESPONDENT:
CHRISTINE M. jBECER
Trial Attomey
Torts Branch, Civil Division
U.S. Departmentiof Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-3665
christine.m.bec
doj.gov