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

Sn the Gunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: November 15, 2021
* * * * * * * * * * * * * Unpublished
RICHARD ROBINSON, *
Petitioner, * No. 19-2011V
*
V. * Special Master Gowen
*
SECRETARY OF HEALTH * Decision on Stipulation;
AND HUMAN SERVICES, * Influenza (flu); Acute
* Disseminated Encephalomyelitis
Respondent. * (“ADEM”).
* > * FF * * KF KK HK HK KK HK
Meredith Daniels, Conway Homer, P.C., Boston, MA, for petitioner.
Mollie D. Gorney, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION ON STIPULATION!
On December 31, 2019, Richard Robinson (“petitioner”), filed a petition for
compensation under the National Vaccine Injury Program.” Petition (ECF No. 1). Petitioner
alleges that as a result of the influenza (“flu”) vaccine on November 3, 2017, he suffered from
acute disseminated encephalomyelitis (“ADEM”). Jd. at Preamble.
On November 15, 2021, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation (ECF No. 53). Respondent denies that
the flu vaccine is the cause of petitioner’s ADEM or any other injury or his current 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
' 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.
to the petitioner according to the terms of the stipulation attached hereto as Appendix A. 7d. at {
7.
The stipulation provides:
a) A lump sum of $224,660.65, which amount represents compensation for first
year life care expenses of $74,660.65; $125,000 for pain and suffering; and
$25,000.00 for past unreimbursable expenses in the form of a check payable to
petitioner; and
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 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
)
RICHARD ROBINSON, )
)
Petitioner, )
v. )
) No. 19-2011V
SECRETARY OF HEALTH ) Special Master Gowen
AND HUMAN SERVICES, ) ECF
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Richard Robinson, 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 his flu vaccination on November 3, 2017.
3. The vaccination was administered within the United States.
4. Petitioner alleges that he suffered from acute disseminated encephalomyelitis
(“ADEM”) as a result of receiving the flu vaccine, and that he experienced the 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 his behalf as a result of his condition.
6. Respondent denies that the flu vaccine caused petitioner to suffer from ADEM or any
other mjury 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 payments:
a. A lump sum of $224,660.65, which amount represents compensation for first year life
care expenses ($74,660.65), pain and suffering ($125,000.00), and past unreimbursable
expenses ($25,000.00) in the form of a check payable to petitioner;
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”).
These amounts represent compensation for all damages that would be available under 42
USC. §300aa-15(a).
9. The Life Insurance Company must have a minimum of $250,000,000 capital and
surplus, exclusive of any mandatory security 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, Atp, A+r, or Ats;
b. Moody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aal, or Aaa;
c. Standard and Poor’s Corporation Insurer Claims-Paying Ability Rating: AA-,
AA, AA+, or AAA;
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 petitioner, Richard Robinson, pursuant to
which the Life Insurance Company will agree to make payments periodically to petitioner as
follows for the following life care items available under 42 U.S.C. §300aa-15(a).
a. For future unreimbursable Medicare Part B Deductible and Tricare Deductible
expenses, beginning on the first anniversary of the date of judgment, an annual amount of
$353.00 to be paid for the remainder of petitioner’s life, increasing at the rate of four
percent (4%), compounded annually from the date of judgment.
b. For future unreimbursable Vitamin D3, Zinc, Miralax, Colace, and Tylenol expenses,
beginning on the first anniversary of the date of judgment, an annual amount of $398.94
to be paid for the remainder of petitioner’s life, increasing at the rate of three percent
(3%), compounded annually from the date of judgment.
c. For future unreimbursable Physical Therapy and Occupational Therapy expenses,
beginning on the first anniversary of the date of judgment, an annual amount of
$1,300.00 to be paid for the remainder of petitioner’s life, increasing at the rate of three
percent (3%), compounded annually from the date of judgment.
d. For future unreimbursable Knee Brace, Heel Pad Protector, Rolling Walker, Bariatric
Wheelcharr, Bariatric Lift Chair, Hoyer Lift, Hand Held Shower, Stander, Drop Arm
Commode, Urinal, Bedpan, Transfer Board, Gait Belt, ADLs, Pill Organizer, Chair Lift
Maintenance, and Life Alert expenses, on the first anniversary of the date, a lump sum of
$1,487.99. Then, on the anniversary of the date of judgment in year 2023, a lump sum of
$1,570.30. Then, on the anniversary of the date of judgment in year 2024, a lump sum of
$1,533.07. Then, on the anniversary of the date of judgment in year 2025, a lump sum of
$2,001.48. Then, on the anniversary of the date of judgment in year 2026, a lump sum of
$1,648.16. Then, on the anniversary of the date of judgment in year 2027, a lump sum of
$1,739.82. Then, beginning on the anniversary of the date of judgment in year 2028, an
annual amount of $1,619.83 to be paid up to the anniversary of the date of judgment in
year 2030. Then, on the anniversary of the date of judgment in year 2030, a ump sum of
$1,662.72. Thereafter, beginning on the anniversary of the date of judgment in year
2031, an annual amount of $1,624.12 to be paid for the remainder of petitioner’s life, all
amounts increasing at the rate of three percent (3%), compounded annually from the date
of judgment.
e. For future unreimbursable Protective Underwear, Incontinent Shield, Mattress
Protector, Waterproof Washable Pad, Underpad, and Wipe expenses, beginning on the
first anniversary of the date of judgment, an annual amount of $1,071.84 to be paid for
the remainder of petitioner’s life, increasing at the rate of three percent (3%),
compounded annually from the date of judgment.
f. For future unreimbursable Home Care expenses, beginning on the first anniversary of
the date of judgment, an annual amount of $58,400.00 to be paid for the remainder of
petitioner’s life, increasing at the rate of three percent (3%), compounded annually from
the date of judgment.
g. For future unreimbursable Van Modification expenses, on the anniversary of the date
of judgment in year 2030, a lump sum of $35,000.00. Thereafter, beginning on the
anniversary of the date of judgment in year 2031, an annual amount of $3,500.00 to be
paid for the remainder of petitioner’s life, all amounts increasing at the rate of three
percent (3%), compounded annually from the date of judgment.
At the sole discretion of the Secretary of Health and Human Services, the periodic payments set
forth in paragraph 10 above may be provided to petitioner in monthly, quarterly, annual or other
installments. The “annual amounts” set forth above describe only the total yearly sum to be paid
to petitioner and do not require that the payment be made in one annual installment. Petitioner
will continue to receive the annuity payments from the Life Insurance Company only so long as
he, Richard Robinson, is alive at the time that a particular payment is due. Written notice shall
be provided to the Secretary of Health and Human Services and the Life Insurance Company
‘within twenty (20) days of Richard Robinson’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 12 herein, and that they do not guarantee or insure any of the
future annuity payments. 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 future annuity payments.
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 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.
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, and past unreimbursable expenses, the money provided
pursuant to this Stipulation either immediately or as part of the annuity contract, will be used
solely for petitioner’s benefit 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 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 November 3, 2017, as
alleged by petitioner in a petition for vaccine compensation filed on or about December 31,
2019, in the United States Court of Federal Claims as petition No. 19-2011V.
17. 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.
18. 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.
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 actor 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.
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 flu vaccine caused petitioner’s alleged ADEM
or any other injury or his current condition.
22. 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:
sp) LEY
RICHARD ROBINSON
ATT EY OF RECORD FOR
PE ODER:
RONALD C. HOMER, ESQ.
MEREDITH DANIELS, ESQ.
Conway Homer, P.C,
16 Shawmut Street
Boston, MA 02116
Tel: (617) 695-1990
Email: mdaniels@ccandh.com
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Dabs Wahler, DCNSe,
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
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AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
Ate driad Vee IWV—
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:
Molt DB Gorrtr~+,
bu Weotthinl
MOLLIE D. GORNEY
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington. DC 20044-0146
Tel: (202) 616-4029
Pen In—