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

Sn the Guited States Court of Federal Claims
Office of Special Masters
Filed: November 10, 2021
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DALE PATE * UNPUBLISHED
Petitioner, *
* No. 15-1309V
V. *
* Special Master Gowen
*
SECRETARY OF HEALTH * Stipulation for Award; Influenza (“flu”);
AND HUMAN SERVICES, * Chronic Demyelinating Inflammatory
* Polyneuropathy (“CIDP”); Guillain-Barré
Respondent. * Syndrome (“GBS”).
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Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School, Washington, D.C.,
for petitioner.
Althea W. Davis, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION ON STIPULATION!
On November 3, 2015, Dale Pate (“petitioner”), filed a petition for compensation under
the National Vaccine Injury Program.” Petition (ECF No. 1). Petitioner alleges that he suffered
from Guillain-Barré syndrome (“GBS”) and/or Chronic Inflammatory Demyelinating
Polyneuropathy (“CIDP”) as a result of receiving the influenza (“flu”) vaccine on December 10,
2012. Id.
On November 9, 2021, respondent filed a stipulation providing a decision should be
entered awarding compensation to petitioner. Stipulation (ECF No. 163). Respondent denies
that the vaccines are the cause of petitioner’s alleged injuries, or any other injury or his current
' Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the
decision.” /d. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. /d.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
condition. /d. at [6. Nevertheless, maintaining their respective positions, the parties now agree
that the issues between them shall be settled and that a decision should be entered awarding the
compensation to the petitioner according to the terms of the stipulation attached hereto as
Appendix A. Id. at {7.
The stipulation provides:
a) A lump sum of $65,000.00 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).
Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with
the terms of the stipulation and this decision.*
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
DALE PATE, )
)
Petitioner, ) No. 15-1309V
) Special Master
V. ) Thomas L. Gowen
) ECF
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Dale Pate, 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 December 10, 2012.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he suffered chronic polyneuropathy, progressive
polyneuropathy, inflammatory polyneuropathy, sensory axonal and demyelinating
polyneuropathy, Guillain-Barré Syndrome (GBS), and/or Chronic Inflammatory Demyelinating
Polyneuropathy (CIDP), and Irritable Bowel Syndrome (IBS) as the result of his flu vaccine.
Additionally, petitioner claims that he suffered the aggravation of his vision, dysthymia, and
hemorrhoids as the result of his vaccine. Petitioner further alleges that he suffered the residual
effects of his alleged injury for more than six months following his vaccination.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on his behalf as the result of his alleged vaccine injury.
6. Respondent denies that the flu vaccine caused any of petitioner’s alleged injuries or
any other injury or his current 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 $65,000.00 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 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. 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-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 past 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-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 his
individual capacity, and on behalf of 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. § 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 December 10, 2012,
as alleged in a petition for vaccine compensation filed on or about November 3, 2015, in the
United States Court of Federal Claims as petition No. 15-1309.
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. 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.
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 injuries
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
Respectfully submitted,
PETITIONER:
PRQID
DALEPATE
ATTORNEY OF RECORD FOR
PETITIONER:
_/RENEE J. GENTRY, ESQUIRE’
Vaccine Injury Litigation Clinic
George Washington University
Law School
2000 G Street, NW
Washington, D.C. 20052
(202) 994-8161
Rgentry@law.gwu.edu
AUTHORIZED REPRESENTATIVE OF
THE SECRETARY OF HEALTH AND
HUMAN SERVICES:
Dake Weshler, ODN Sc, APY, fr
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Health Systems Bureau
Health Resources and Services
Administration
U.S. Department of Health
and Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
Dated: }) (sleaze )
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
AL ctw Pea svw——
HEATHER L. PEARLMAN
Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
Gta Wolk Dava
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ALTHEA WALKER DAVIS
Senior Trial Counsel
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 616-0515
Althea. Davis@usdoj.gov