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

In the Gnited States Court of Federal Clans
OFFICE OF SPECIAL MASTERS
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C.H., *
parent of I.H., a minor, **
* No. 18-1920V
Petitioner, ** Special Master Christian J. Moran
Ed
V. ** Filed: November 3, 2021
** Reissued: December 8, 2021
SECRETARY OF HEALTH *
AND HUMAN SERVICES, ** Stipulation; Hepatitis B vaccine;
** inactivated polio (“IPV”); idiopathic
** thrombocytopenic purpura (“ITP”).
Respondent. *
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Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner;
Ronalda E. Kosh, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION'
On November 3, 2021, the parties filed a joint stipulation concerning the
petition for compensation filed by C.H. on December 14, 2018. In her petition,
petitioner alleged that the hepatitis B and inactivated polio (“IP V”) vaccines,
which are contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §
100.3(a), and which IH. received on March 6, 2017, caused IH. to suffer
idiopathic thrombocytopenic purpura (“ITP”). Petitioner further alleges that I.H.
suffered the residual effects of this injury for more than six months. Petitioner
represents that there has been no prior award or settlement of a civil action for
damages on behalf of I.H. as a result of his condition.
Respondent denies that the vaccines caused I.H. to suffer from ITP or any
other injury.
' Pursuant to Vaccine Rule 18(b), C.H. filed a motion to redact her name from the
decision. This motion was granted and the decision is being otherwise released to the public.
Nevertheless, the parties agree to the joint stipulation, attached hereto. The
undersigned finds said stipulation reasonable and adopts it as the decision of the
Court in awarding damages, on the terms set forth therein.
Damages awarded in that stipulation include:
a. A lump sum payment of $7,632.84, which amount represents
reimbursement of a lien for services rendered on behalf of I.H. by
Wellcare, a Medicaid plan, in the form of a check payable jointly to
petitioner and Equian, and mailed to:
Equian
P.O. Box 182643
Columbus, OH 43218
Tax ID #: XX-XXXXXXX
Equian Event Number: 45764645
Legacy Case Number: 995746
Attn: Michael Zyrowski
b. An amount sufficient to purchase the annuity contract described in
paragraph 10 of the stipulation, paid to the life insurance company
from which the annuity will be purchased (the “Life Insurance
Company”).
These amounts represent all other damages that would be available
under 42 U.S.C. § 300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment according to this decision and the attached
stipulation.”
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
* Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
Special Master
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
parent of )
].H., a minor, )
)
Petitioner, )
Vv. ) No. 18-1920V
)} Special Master Moran
SECRETARY OF HEALTH AND HUMAN |)
SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. On behalf of her son, I.H., 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 I.H.’s receipt of the
hepatitis B (“Hep B”) and inactivated polio (“IPV”) vaccines, which vaccines are contained in
the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).
2. LH. received his immunizations on March 6, 2017.
3. The vaccines were administered within the United States.
4. Petitioner alleges that the vaccines caused I.H. to suffer from idiopathic
thrombocytopenic purpura (“ITP”), and that I.H. experienced 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 on behalf of I.H. as a result of his condition.
6. Respondent denies that the vaccines caused I.H. to suffer from ITP or any other injury.
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 for all damages that would be available under 42
U.S.C. §300aa-1 5(a):
a. A lump sum of $7,632.84,' which amount represents reimbursement of a lien for
services rendered on behalf of I.H. by Wellcare, a Medicaid plan, in the form of a check
payable jointly to petitioner and Equian, and mailed to:
Equian
P.O. Box 182643
Columbus, OH 43218
Tax ID #: XX-XXXXXXX
Equian Event Number: 45764645
Legacy Case Number: 995746
Attn: Michael Zyrowski
b. An amount sufficient to purchase the annuity contract described in paragraph 10
below, paid to the life insurance company from which the annuity will be purchased (the
“Life Insurance Company”).
9. The Life Insurance Company must have a minimum of $250,000,000.00 capital and
surplus, exclusive of any mandatory securily valuation reserve. The Life Insurance Company
‘must have one of the following ratings from two of the following rating organizations:
a, A.M. Best Company: A++, A+, At+g, At+p, Atr, or At+s;
' This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or
cause of action the State of Nebraska may have against any individual as a result of any
Medicaid payments Wellcare has made to or on behalf of I.H. as a result of his alleged vaccine-
related injury suffered following vaccination on or about March 6, 2017, under Title XIX of the
Social Security Act, see 42 U.S.C. § 300aa-15(g), (h).
b, Moody's Investor Service Claims Paying Rating: Aa3, An2, Aal, or Aaa;
Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-,
AA, AA+, or AAA;
G
d, Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating:
AA-, AA, AA+. or AAA.
10. The Secretary of Health and Human Services agrees to purchase an annuity contract
from the Life Insurance Company for the benefit of 1.H., pursuant to which the Life Insurance
Company will agree to make a certain lump sum payment to I.H. for all other damages that
would be available under 42 U.S.C. §300aa-15(a), as follows:
a. $80,325.59 payable in a certain lump sum on December 8, 2026.
The payments provided for in paragraph 10 shall be made as set forth above. Should I.H,
predecease the certain lump sum payment set forth above, the certain lump sum payment shall be
made to his estate. Written notice to the Secretary of Health and Human Services and to the Life
Insurance Company shall be provided within twenty (20) days of I.H.’s death.
11. The annuity contract will be owned solely and exclusively by the Secretary of Health
and Human Services and will be purchased as soon as practicable following the entry of a
judgment in conformity with this Stipulation. The parties stipulate and agree that the Secretary
of Health and Human Services and the United States of America are not responsible for the
payment of any sums other than the amounts set forth in paragraph 8 herein and the amounts
awarded pursuant to paragraph [2 herein, and that they do not guarantee or insure the future
annuity payment. Upon the purchase of the annuity contract, the Secretary of Health and Human
Services and the United States of America are released from any and all obligations with respect
to the future annuity payment.
12. 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 proceeding
upon this petition.
13. 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, 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.
14. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 12 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i),
subject to the availability of sufficient statutory funds.
15. 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 I.H. 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).
16. In return for the payments described in paragraphs 8 and 12, petitioner, in her
individual capacity and as legal representative of [.H., on behalf ofherself, I.H., and his 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. § 300 aa-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 I.H. resulting from, or alleged to have resulted from, the vaccinations
administered on March 6, 2017, as alleged by petitioner in a petition for vaccine compensation
filed on or about December 14, 2018, in the United States Court of Federal Claims as petition
No, 18-1920V.
17. If1.H. 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.
18. Ifthe 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 discretion of either party.
19. 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 12 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 agrecment.
20. Petitioner hereby authorizes respondent to disclose documents filed by petitioner in
this case consistent with the Privacy Act and the routine uses described in the National Vaccine
Injury Compensation Program System of Records, No. 09-15-0056.
21. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the Hep B and/or IPV vaccines caused I.H. to
suffer ITP or any other injury or condition.
22. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns as legal representatives of I.H.
END OF STIPULATION
a
Respectfully submitted,
PETITIONER
ATTOR OF RECORD FOR AUTHORIZED REPRSENTATIVE
PETITI : OF THE ATTORNEY GENERAL:
7
a
RONALAJC. HOMER HEATHER L. PEARLMAN
CHRISTINA CIAMPOLILLO Deputy Director
Conway Homer, P.C. Torts Branch
16 Shawmut Street Civil Division
Boston, MA 02116 U.S, Department of Justice
Tel: (617) 695-1990 P.O. Box 146
Email: eciampolillo@eccandh,com Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
Dale P. Mishler, DHS, MS, APRN, for Condole Cc Kowta,
be Red LC An
TAMARA OVERBY RONALDA E. KOSH
’ Acting Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch
Health Systems Bureau Civil Division
Health Resources and Services U.S. Department of Justice
Administration P.O. Box 146
U.S. Department of Health Benjamin Franklin Station
and Human Services Washington, DC 20044-0146
5600 Fishers Lane, 08N146B Tel: (202) 616-4476
Rockville, MD 20857
Dated: Wloz/eozy