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

In the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1111V
(not to be published)
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*
DEBORAH KELLEY, :
* Filed: March 8, 2022
Petitioner, *
*
*
Vv. * Decision by Stipulation; Damages;
* Influenza (“Flu”) Vaccine; Guillain-Barré
SECRETARY OF HEALTH AND : syndrome.
HUMAN SERVICES, Ce
*
Respondent. *
*
*
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Jessica Powell, Burg Simpson Eldredge Hersh & Jardine, Cincinnati, OH, for Petitioner
Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON JOINT STIPULATION!
On July 31, 2019, Deborah Kelley (“Petitioner”) filed a petition, seeking compensation
under the National Vaccine Injury Compensation Program (“the Vaccine Program’”).” Pet., ECF
No. 1. Petitioner alleges she suffered from a Table injury of Guillain-Barré syndrome as a result
of the influenza (“flu”) vaccination she received on October 23, 2018. See Stipulation { 2, 4, dated
March 8, 2022 (ECF No. 54); see also Petition.
Respondent denies “that petitioner suffered a Table injury of GBS after a flu vaccine,
' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the Decision will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), 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 Decision in its present form will be available. Jd.
* The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
denies that the flu vaccine caused petitioner’s alleged GBS or any other injury or condition, and
denies that petitioner’s alleged injury or condition is a sequela of a vaccine-related injury.” See
Stipulation {[ 6. Nonetheless, both parties, while maintaining their above-stated positions, agreed
in a stipulation filed March 8, 2022 that the issues before them can be settled and that a decision
should be entered awarding Petitioner compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth
therein.
The stipulation awards:
a lump sum of $80,000.00 in the form of a check payable to petitioner.
Stipulation J 8. This award represents compensation for all damages that would be available under
42 U.S.C. § 300aa-15(a).
I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court is directed to enter judgment herewith.
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
> Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice
renouncing their right to seek review.
THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
DEBORAH KELLEY,
Petitioner,
v. No. 19-1111V
Special Master Katherine E. Oler
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Deborah Kelley, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (“Vaccine
Program”). The petition seeks compensation for injuries allegedly related to petitioner’s receipt
of the influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (“Table”), 42
C.F.R. § 100.3(a).
2. Petitioner received the flu vaccine on or about October 23, 2018.
3. The vaccine was administered within the United States.
4. Petitioner alleges that the flu vaccine caused her to develop Guillain-Barré Syndrome
(“GBS”), and that she experienced the residual effects of this condition for more than six
months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of her condition.
6. Respondent denies that petitioner suffered a Table injury of GBS after a flu vaccine,
denies that the flu vaccine caused petitioner’s alleged GBS or any other injury or condition, and
denies that petitioner’s alleged injury or condition is a sequela 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 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 $80,000,000 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 Vaccine 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), or entities that provide health services on a pre-paid basis.
11. Payment made pursuant to paragraph 8 of this Stipulation, and any amount awarded
pursuant to paragraph 9, will be made in accordance with 42 U.S.C. § 300aa-15(i) and 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 unreimbursable 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 payment described in paragraph 8, and any amount awarded
pursuant to paragraph 9, petitioner, in her individual capacity and on behalf of her heirs,
executors, administrators, successors, and/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 Vaccine Program 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 or about
October 23, 2018, as alleged by petitioner in a petition for vaccine compensation filed on or
about July 31, 2019, in the United States Court of Federal Claims as petition No. 19-1111V.
14. If petitioner should die prior to entry of judgment, this agreement shall be voidable
upon proper notice to the Court of Federal Claims 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 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 vaccine caused petitioner’s alleged GBS or
any other injury or 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:
C Jetan cf Hein
DEBORAH KELLEY’
ATTORNEY OF RECORD FOR
PETITIONER:
SSICA L. POWELL
URG SIMPSON
ELDREDGE HERSH & JARDINE, P.C.
312 Walnut Street, Suite 2090
Cincinnati, OH 45202
jpowell@burgsimpson.com
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Digitally signed by George R.
George R. Grimes -S14 Grimes -si4
Date: 2022.03.01 15:41:30 -05'00"
CDR GEORGE REED GRIMES, MD, MPH
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
DATE: 02/0@)2622_
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, D.C. 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
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FELICIA D. LANGEL
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
felicia.d.langel@usdoj.gov