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

Sn the Cnited States Court of Federal Claiung
OFFICE OF SPECIAL MASTERS
No. 14-109V
Filed: January 13, 2021
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ALEXYS HEBERT, * UNPUBLISHED
*
Petitioner, * Decision on Joint Stipulation;
* Transverse Myelitis (“TM”);
V. * Influenza (“Flu”) Vaccine
*
SECRETARY OF HEALTH **
AND HUMAN SERVICES, *
*
Respondent. *
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John Jefcoat, Esq., Galloway Jefcoat, LLP, Lafayette, LA, for petitioner.
Gabrielle Fielding, Esq., US Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION!
Roth, Special Master:
On February 7, 2014, Alexys Hebert (“Ms. Hebert” or “petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program.” Petitioner alleges that
she developed transverse myelitis (“TM”) after receiving an influenza (“flu”) vaccination on
January 13, 2011. Stipulation, filed Jan. 12, 2021, at {{ 1-4. Respondent denies that the flu vaccine
caused petitioner’s alleged TM, or any other injury, and further denies that petitioner’s current
disabilities are sequelae of a vaccine-related injury. Stipulation at { 6.
Nevertheless, the parties have agreed to settle the case. On January 12, 2021, the parties
filed a joint stipulation agreeing to settle this case and describing the settlement terms.
| Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the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.
2 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).
Respondent agrees to issue the following payments:
1) A lump sum of $349,883.35 in the form of a check payable to petitioner,
Alexys Hebert, representing compensation for first-year life care expenses,
pain and suffering, and past unreimbursable expenses; and
2) An amount sufficient to purchase the annuity contract described in
paragraph 10 of the attached Stipulation, paid to the life insurance
company from which the annuity will be purchased. 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 IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
ALEXYS HEBERT, )
)
Petitioner, )
V. )
) No. 14-109V
SECRETARY OF HEALTH ) Special Master Roth
AND HUMAN SERVICES, ) ECF
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Alexys Hebert (“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 January 13, 2011.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered from acute transverse myelitis (“TM’’) that was
caused-in-fact by the flu vaccine. Petitioner further alleges that she 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 her behalf as a result of her condition.
6. Respondent denies that the flu vaccine caused petitioner’s alleged TM, or any other
injury; and further denies that petitioner’s current disabilities are sequelae 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 payments:
a. A lump sum of $349,883.35 in the form of a check payable to petitioner. This amount
represents compensation for first-year life care expenses, pain and suffering, and past
unreimbursable expenses; and
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
U.S.C. $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+tg, A+p, 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, Alexys Hebert, 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 Affordable Care Act Maximum out of Pocket expenses,
beginning on the first anniversary of the date of judgment, an annual amount of
$7,450.00 to be paid up to the anniversary of the date of judgment in year 2059,
increasing at the rate of five percent (5%), compounded annually from the date of
judgment.
b. For future unreimbursable Medicare Part B Deductible expenses, beginning on the
anniversary of the date of judgment in year 2059, an annual amount of $198.00 to be paid
for the remainder of petitioner's life, increasing at the rate of five percent (5%),
compounded annually from the date of judgment.
c, For future unreimbursable Medicare Supplement and Medicare Part D expenses,
beginning on the anniversary of the date of judgment in year 2059, an annual amount of
$1,952.36 to be paid for the remainder of petitioner’s life, increasing atthe rate of five
percent (5%), compounded annually from the date of judgment.
d. For future unreimbursable Home Attendant Care and Ancillary Services expenses,
beginning on the first anniversary of the date of judgment, an annual amount of
$13,741.00 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.
e. For future unreimbursable Wheelchair Van expenses, on the anniversary of the date of
judgment in year 2030, a lump sum of $26,500.00. Then, on the anniversary of the date
of judgment in year 2040, a lump sum of $26,500.00. Thereafter, beginning on the
anniversary of the date of judgment in year 2041, an annual amount of $2,650.00 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.
f. For future unreimbursable Lubricating Jelly, Flushable Cleaning Cloths, Depends,
Gloves, and Disposable Underpad expenses, beginning on the first anniversary of the date
of judgment, an annual amount of $875.23 to be paid for the remainder of petitioner’s
life, increasing atthe rate of three percent (3%), compounded annually from the date of
judgment.
g. For future unreimbursable Preparation H and Miralax expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $182.64 to be paid for the
remainder of petitioner’s life, increasing atthe rate of three percent (3%), compounded
annually from the date of judgment.
h. For future unreimbursable TENS, Transfer Board, Manual Wheelchair, Manual
Wheelchair Maintenance, and Shower Wheelchair expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $985.02 to be paid for the
remainder of petitioner’s life, increasing atthe rate of three percent (3%), compounded
annually from the date of judgment.
i. For future unreimbursable Hyoscyamine medication expenses, beginning on the
anniversary of the date of judgment in year 2059, an annual amount of $125.68 to be paid
for the remainder of petitioner’s life, increasing at the rate of five percent (5%),
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
she, Alexys Hebert, 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 Alexys Hebert’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 ofa
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 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.
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 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 vaccination administered on January 13, 2011, as
alleged by petitioner in a petition for vaccine compensation filed on or about February 7, 2014 in
the United States Court of Federal Claims as petition No. 14-109V.
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 vaccine caused petitioner’s alleged TM, or any
other injury, or that her current disabilities are sequelae of her alleged vaccine-related injury.
22. All rights 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:
ALEXYS HEBER
ATTORNEY OF RECORD FOR
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Novitrcont LLP
¥ ie es Drive
P.O. Box 61550
Layfayette, LA 70596-1550
Tel: (337) 984-8020
AUTHORIZED REPRESENTATIVE OF
THE SECRETARY OF HEALTH AND
HUMAN SERVICES:
CAPT Dale Miklar, ON'Ser for
TAMARA OVERBY
Acting Director
Division of Injury Compensation Programs
Healthcare Systems Bureau
Health Resources and Services Administration
U.S. Department of Health and Human Services
5600 Fishers Lane
Parklawn Building, Stop 08N146B
Rockville, MD 20857
DATE: 0) liz /z6z)
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
are Garrrteg Ooo Inn
CATHARINE EREEVES HaPTHe LER eLH AW
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:
lptelle HH rekdlne
GABRIELLE M. FIELDING
Assistant Director
Torts Branch
Civil Division
U. S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-4359
gabrielle. fielding@usdoj.gov