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

Mn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0933V
UNPUBLISHED
DONNA DUCEY, Chief Special Master Corcoran
Petitioner, Filed: February 16, 2021
V.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages; Tdap and
HUMAN SERVICES, Influenza; Anaphylaxis and Guillain
Barre Syndrome
Respondent.
David Gordon Hart, The Hart Law Firm, Colleyville, TX, for petitioner.
Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION"
On July 12, 2017, Donna Ducey filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, ef seq.? (the
“Vaccine Act”). Petitioner alleges that she suffered anaphylaxis and Guillain Barré
Syndrome (GBS) due to her receipt of Tdap and influenza (“flu”) vaccines on September
3, 2015. 3 Petition at 1, 2; Stipulation, filed at February 2, 2021, J] 2, 4. Petitioner further
alleges that the onset of her anaphylaxis occurred “within minutes” of vaccination, that
she began experiencing GBS-related symptoms approximately 15 days after vaccination,
and that she suffered the residual effects of her alleged injuries for more than six months.
Petition at 2-4: Stipulation at 4] 4. “Respondent denies that the vaccines caused
1 Because this unpublished decision contains a reasoned explanation for the action in this case, | am
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, | agree that the identified material fits within this definition, | will redact such material from
public access.
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).
3 Petitioner also received a Pneumovax vaccine on September 3, 2015. However, this vaccine is not a
covered vaccine under the Vaccine Injury Compensation Program.
petitioner's alleged anaphylaxis or GBS or any other injury or her current condition.”
Stipulation at J] 6.
Nevertheless, on February 2, 2021, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. | find the stipulation
reasonable and adopt it as my decision awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, | award the following
compensation:
A lump sum of $220,000.00 in the form of a check payable to Petitioner.
Stipulation at J 8. This amount represents compensation for all items of damages
that would be available under Section 15(a). /d.
| approve the requested amount for Petitioner’s compensation. In the absence of
a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed
to enter judgment in accordance with this decision.4
ITIS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
* Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
DONNA DUCEY, )
)
Petitioner, ) No. 17-933V
) Chief Special Master
V. ) Brian H. Corcoran
) ECF
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Donna Ducey, 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
tetanus vaccine and influenza (“flu”) vaccines,' which vaccines are contained in the Vaccine
Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received the tetanus and flu vaccines on September 3, 2015.
3. The vaccines were administered within the United States.
4. Petitioner alleges that she suffered anaphylaxis and Guillain Barré Syndrome (“GBS”)
as the result of her tetanus and flu vaccinations. Petitioner further alleges that she suffered the
residual effects of her alleged injuries 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 the result of her alleged vaccine injury.
' Petitioner also received a Pneumovax (pneumococcal 23-valent polysaccharide) vaccine on
September 3, 2015. However, this vaccine is not a covered vaccine under the Vaccine Injury
Compensation Program.
6. Respondent denies that the vaccines caused petitioner’s alleged anaphylaxis or GBS
or any other injury or her 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 payment:
A lump sum of $220,000.00 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. Payments 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 attorney’s 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 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 tetanus and flu vaccinations administered on
September 3, 2015, as alleged in a petition for vaccine compensation filed on or about July 12,
2017, in the United States Court of Federal Claims as petition No. 17-933V.
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 vaccines caused petitioner’s alleged
anaphylaxis or GBS or any other injury or her 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
Respectfully submitted,
PETITIONER: ‘)
DONNA DUCEY f
ATTORNEY OF RECORD FOR
PETITIONER:
DAVID G.HART .
The Hart Law Firm, P.C.
6630 Colleyville Blvd.
Suite 100
Colleyville, TX 76034
(817) 329-7020
dhart@thehartlawfirm.com
AUTHORIZED REPRESENTATIVE OF
THE SECRETARY OF HEALTH AND
HUMAN SERVICES:
CAPT Dabs Wheshlr, ONSc, fe
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, Mail Stop 08N146B
Rockville, MD 20857
Dated: ozloz/2\
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
He bthiun h ecutn gy
HEATHER L. PEARLMAN
Acting Deputy Director
Torts Branch
Civil Division
U. S. Department of Justice
P. O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
Lea WolkerTDanrsA
ial bey Wedether | Peer Ln
ALTHEA WALKER DAVIS
Senior Trial Counsel
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 616-0515
Althea. Davis@usdoj.gov