Lenox v. Secretary of Health and Human Services ( 2022 )

Sn the Guited States Court of Federal Clanns
OFFICE OF SPECIAL MASTERS
No. 20-1152V
Filed: December 7, 2021
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SIDNEY LENOX, * UNPUBLISHED
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Petitioner, ** Decision on Joint Stipulation;
* Influenza (“flu”) Vaccine;
** Tetanus, diptheria, acellular
* pertussis (“Tdap”) Vaccine;
V. * Acute Disseminated
* Encephalomyelitis (“ADEM”).
SECRETARY OF HEALTH *
AND HUMAN SERVICES, **
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Respondent. **
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Katy E. Tompkins, Esq., McDonald Tinker PA, Wichita, KS, for petitioner.
Terrence Mangan, Jr., Esq., US Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION!
Roth, Special Master:
On September 4, 2020, Sidney Lenox [“Mr. Lenox” or “petitioner” ] filed a petition for
compensation under the National Vaccine Injury Compensation Program.’ Petitioner alleges that
he developed acute disseminated encephalomyelitis (“ADEM”) after receiving the influenza
! Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s 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.
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).
(“flu”) and tetanus, diptheria, acellular pertussis (“Tdap”) vaccines on September 7, 2018.
Stipulation, filed December 7, 2021, at {{[ 1-4. Respondent denies that any of the aforementioned
immunizations caused petitioner’s injury. Stipulation at{ 6.
Nevertheless, the parties have agreed to settle the case. On December 7, 2021, the parties
filed a joint stipulation agreeing to settle this case and describing the settle ment terms.
Respondent agrees to issue the following payment:
A lump sum of $130,000.00 in the form of a check payable to petitioner, Sidney
Lenox. 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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
SIDNEY LENOX,
Petitioner, No. 20-1152V
Special Master Roth
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1, Sidney Lenox (“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 the influenza (“flu”) vaccine, and tetanus, diphtheria, acellular pertussis (“Tdap”) vaccine,
which are vaccines contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).
2, Petitioner received flu and Tdap vaccines on or about September 7, 2018.!
3. The vaccinations were administered within the United States.
4, Petitioner alleges that he developed Acute Disseminated Encephalomyelitis
(“ADEM”) following receipt of the flu and Tdap vaccines, and that he suffered the residual
effects of this alleged injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
' Petitioner also received a Pneumovax vaccine on September 7, 2018, but that vaccine is not a
covered vaccine in the Vaccine Program.
for damages on his behalf as a result of his condition.
6. Respondent denies that the flu or Tdap vaccines caused petitioner’s alleged ADEM 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:
A lump sum of $130,000.00 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 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.
11. Payment made pursuant to paragraph 8 of this Stipulation 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 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 and Tdap vaccinations administered on September
7, 2018, as alleged by petitioner in a petition for vaccine compensation filed on or about
September 4, 2020, in the United States Court of Federal Claims as petition No. 20-1152V.
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 or Tdap vaccines caused petitioner’s alleged
ADEM, 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
`` SS
Respectfully submitted,
PETITIONER:
+
SIDNEY LENOX 7
ATTORNEY OF RECORD
FOR PETITIONER:
McDonald Tinker PA
300 West Douglas Avenue
Suite 500
Wichita, KS 67202
Tel: (316) 263-5851
Fax: (316) 263-4677
Email: ktompkins@mcdonaldtinker.com
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Dale Wlushbar, PNSo, 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: 17 leF 1202. |
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
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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:
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TERRENCE K. MANGAN, JR.
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 514-8988
Email: terrence.mangan@usdoj.gov