Whaley v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
ROBERT WHALEY, *
* No. 16-192V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: January 5, 2017
*
SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine;
AND HUMAN SERVICES, * chronic inflammatory demyelinating
* polyneuropathy (“CIDP”); Anti-MAG
* neuropathy.
*
Respondent. *
******************** *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner;
Lisa A. Watts, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On January 4, 2017, the parties filed a joint stipulation concerning the
petition for compensation filed by Robert Whaley on February 8, 2016. In his
petition, petitioner alleged that the influenza vaccine, which is contained in the
Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on
October 15, 2014, caused him to develop chronic inflammatory demyelinating
polyneuropathy (“CIDP”) and/or Anti-MAG neuropathy. Petitioner further alleges
that he suffered the residual effects of this injury for more than six months.
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.
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
Respondent denies that the influenza vaccine caused petitioner to develop
CIDP, Anti-MAG neuropathy, or any other injury, and further denies that
petitioner’s current disabilities are sequelae of a vaccine-related injury.
Nevertheless, the parties agree to the joint stipulation, attached hereto. The
undersigned finds said stipulation reasonable and adopts it as the decision of the
Court in awarding damages, on the terms set forth therein.
Damages awarded in that stipulation include:
A lump sum payment of $100,000.00 in the form of a check payable to
petitioner, Robert Whaley. This amount represents compensation for
all damages that would be available under 42 U.S.C. § 300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 16-192V according to this decision
and the attached stipulation.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
2
Case 1:16-vv-00192-UNJ Document 35 Filed 01/04/17 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
ROBERT WHALEY, ) :ECF
)
Petitioner, )
)
v. ) No. 16-192V
) Special Master
SECRETARY OF HEALTH AND HUMAN ) Cluistian J. Moran
SERVICES, )
)
Respondent. )
``````````````)
STIPULATION
The parties hereby stipulate to the following matters:
1. Robert Whaley ("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, 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 October 15, 2014.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he developed chronic inflammatory demyelinating
polyneuropathy ("CIDP") and/or Anti-MAG neuropathy, which were caused-in-fact by the flu
vaccine. Petitioner further alleges that he suffered the residual effects of his iajuries 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.
Case 1:16-vv-00192-UNJ Document 35 Filed 01/04/17 Page 2 of 5
6. Respondent denies that the flu vaccine caused petitioner's alleged CIDP, Anti-MAG
neuropathy, or any other injury, and further denies that petitioner's cwTent 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 tenns of this Stipulation, and after petitioner bas filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa-2 l(a)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment;
A lump sum of $100.000.00 in the form of a check payable to petitioner. This amount
represents compensation for all damages that would be available Wlder 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)(l), 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 se1vices 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 ct seq.)), or entities that provide health services on a prepaid basis.
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Case 1:16-vv-00192-UNJ Document 35 Filed 01/04/17 Page 3 of 5
11. Payment made pursuant to paragraph 8, and any amounts awarded pursuant to
paragraph 9 of th.is 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, 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-1 5(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, and 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 United States Court ofFederal 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 vaccine administered on
October 15, 2014, as alleged by petitionerin a petition for vaccine compensation filed on or
about February 8, 2016, in the United States Court of Federal Claims as petition No. 16-192V.
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 tenns
of this Stipulation or if the United States Court of Federal Claims foils to enter judgment in
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Case 1:16-vv-00192-UNJ Document 35 Filed 01/04/17 Page 4 of 5
conformity with a decision that is in complete confo1mity 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 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 conshued as an admission by the United States or the
Secretary of Health and Human Services that flu vaccine caused petitioner's alleged CIDP, Anti-
MAG neuropathy, or any other injury, or that his current disabilities are sequelae of his alleged
vaccine-related injuries.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
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END OF STIPULATION
I
I
II
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Case 1:16-vv-00192-UNJ Document 35 Filed 01/04/17 Page 5 of 5
Respectfully submitted,
ROBERT WHALEY ___ · . ---- --
----------·
ATTORNEY OF RECORD FOR
' ,,.,-- ·--..... - ..........L
..... -
'
AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE AITORNEY GENERAL:
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---.._
~ C.\ioftU/\_ ~ Ru.u 83 .l lc)Lz)
RONALD C. HOMER, SQ. EE. REEVES
CONWAY, HOMER & CHIN-CAPLAN, P.C. Ac eputy Director
16 Shawmut Street Torts Branch
.Boston, MA 02116 Civil Division
Tel: (617) 695-1990 U.S. DepartmentofJusticc
P. 0 . Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE .OF ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH AND RESPONDENT:
HUMAN SERVICES:
Director Senior Trial Attorney
Division of Injury Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
Health Resources and Services Administration U. S. Department of Justice
U.S. Department of Health and Human Services P. 0. Box 146
5600 Fishers Lane Benjamin Franklin Station
Pnrklown Building, Stop 08Nl46B Washington, DC 20044-0146
Rockville, Mf 0857 Tel: (202) 616-4099
DATE: ~_.,.,__ ____...,_.._
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