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

Sn the Gunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: November 23, 2021
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LEIA A. PRAUSE, * UNPUBLISHED
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Petitioner, * No. 19-1322V
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V. * Special Master Dorsey
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SECRETARY OF HEALTH * Decision Based on Stipulation; Influenza
AND HUMAN SERVICES, * (“Flu”) Vaccine; Guillain-Barre
* Syndrome (“GBS”); Chronic Inflammatory
Respondent. * Demyelinating Polyneuropathy (“CIDP”).
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Glen H. Sturtevant, Jr., Rawls Law Group, Richmond, VA, for petitioner.
Camille M. Collett, US Department of Justice, Washington, DC, for respondent.
DECISION BASED ON STIPULATION'
On August 30, 2019, Leia A. Prause (“petitioner”) filed a petition in the National Vaccine
Injury Compensation Program.” Petitioner alleged that as a result of influenza (“flu”)
vaccination on September 7, 2016, she developed Guillain-Barre syndrome (“GBS”) which
progressed to chronic inflammatory demyelinating polyneuropathy (“CIDP”) and residual health
problems. Petition at 1 (ECF No. 1).
On November 23, 2021, the parties filed a stipulation recommending an award of
compensation to petitioner. Stipulation (ECF No. 61). Respondent denies that petitioner
sustained a GBS Table injury, and further denies that the flu vaccine caused, or significantly
' Because this Decision contains a reasoned explanation for the action in this case, the
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). 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.
* 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. § 300aa.
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aggravated, petitioner’s GBS and/or CIDP or any other injury; and denies that her current
condition is sequela of a vaccine-related injury. Id. at { 6. Nevertheless, the parties agree to the
joint stipulation, attached hereto as Appendix A. The undersigned finds the stipulation
reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth
therein.
The parties stipulate that petitioner shall receive the following compensation:
(1) A lump sum of $225,000.00 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). Stipulation at J 8.
The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.*
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
> Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
LEIA A. PRAUSE
Petitioner,
Vv. No. 19-1322V
Special Master Dorsey
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner Leia A. Prause (“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 September 7, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered froma Table injury, Guillain Barre
Syndrome (“GBS”) within the Table timeframe after receiving a flu vaccine, or in the
alternative that her alleged chronic inflammatory demyelinating polyneuropathy
(“CIDP”) was caused by the flu vaccine. Alternatively, petitioner alleges the flu
vaccine caused a significant aggravation of an underlying immunologic, neurologic, or
genetic disorder, resulting in GBS and/or CIDP. Petitioner further alleges that she
experienced the residual effects of her vaccine-caused 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 her condition.
6. Respondent denies that petitioner sustained a GBS Table injury, and further denies
that the flu vaccine caused, or significantly aggravated, petitioner’s GBS and/or CIDP or any
other injury; and denies that her current condition is a sequela of a vaccine-related 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:
A lump sum of $225,000.00 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 her 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 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 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 September 7, 2016, as
alleged by petitioner in her petition for vaccine compensation filed on August 30, 2019, in the
United States Court of Federal Claims as petition No. 19-1322V.
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 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 influenza vaccination caused petitioner to
suffer GBS and/or CIDP or any other injury.
18. Allrights 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:
LEM A.PRAUSE _
ATTORNEY OF RECORD FOR
PETITIONER:
Ylowe H afturtevant dp
GLEN H. STURTEVANT
Rawls Law Group
211 Rocketts Way, Suite 100
Richmond, VA 23231
Tel: (804) 622-0675
E-mail: gsturtevant@rawlslawgroup.com
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Pals Uetler, DN Se, APLW, for
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: il [24 [2
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
(pom
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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:
Cawwlle eH. Qetlett
A Ahokrs & Bale wok
CAMILLE M. COLLETT
Tnal Attomey
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-4098
Email: Camille.M.Collett@usdoj.gov