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

In the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-431V
(not to be published)
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*
JEANNE DUCHENEAU, personal :
representative of the estate of DENNIS * Filed: February 15, 2022
DUCHENEAU, * ,
*
“ye *
Petitioner, * Decision by Stipulation; Damages; Hib
* Vaccine; Meningococcal Vaccine;
v. : Guillain-Barré syndrome.
SECRETARY OF HEALTH AND :
HUMAN SERVICES, *
*
Respondent. :
*
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Ronald Homer, Conway Homer, P.C., Boston, MA, for Petitioner
Lara Englund, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON JOINT STIPULATION!
On March 27, 2017, Dennis Ducheneau (former Petitioner) filed a petition, seeking
compensation under the National Vaccine Injury Compensation Program (“the Vaccine
Program’).” Pet., ECF No. 1. Mr. Ducheneau alleges he suffered from Guillain-Barré syndrome
as a result of the Hib and meningococcal vaccinations he received on March 4, 2016. See
Stipulation {| 2, 4, dated February 15, 2022 (ECF No. 108); see also Petition. Mr. Ducheneau
' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted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.
passed away on April 26, 2020. Ex. 181. Ms. Ducheneau became Petitioner on December 17, 2021
after the appropriate probate documents were filed. ECF No. 104.
Respondent denies “that either the Hib or meningococcal vaccine is the cause of Mr.
Ducheneau’s alleged GBS or any other injury or his subsequent death.” See Stipulation { 6.
Nonetheless, both parties, while maintaining their above-stated positions, agreed in a stipulation
filed February 15, 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 $42,000.00 in the form of a check payable to petitioner, Jeanne Ducheneau,
as legal representative of the estate of Dennis Ducheneau.
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 ISSO 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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
JEANNE DUCHENAU, personal representative —_)
of the estate of DENNIS DUCHENEAU, )
)
Petitioner, )
)
V. ) No. 17-431V
) Special Master Katherine E. Oler
SECRETARY OF ) ECF
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Dennis Ducheneau (“Mr. Ducheneau”) filed a petition for vaccine compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (the “Vaccine
Program”). Upon his death, his wife Jeanne Ducheneau (“petitioner”) was substituted as
petitioner herein. The petition seeks compensation for injuries allegedly related to Mr.
Ducheneau’s receipt of the Haemophilus influenza type b (“Hib”) and meningococcal vaccines,
which vaccines are contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).
2. Mr. Ducheneau received Hib and meningococcal vaccines on or about March 4, 2016.
3. The vaccines were administered within the United States.
4. Petitioner alleges that the Hib and meningococcal vaccines caused Mr. Ducheneau to
develop Guillain-Barre Syndrome (“GBS”) and that he experienced 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 as a result of Mr. Ducheneau’s condition or his death.
6. Respondent denies that either the Hib or meningococcal vaccine is the cause of Mr.
Ducheneau’s alleged GBS or any other injury or his subsequent death.
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 $42,000.00 in the form of a check payable to petitioner as legal
representative of the estate of Dennis Ducheneau. 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 represents 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 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. Petitioner represents that she presently is, or within 90 days of the date of judgment
will become, duly authorized to serve as the legal representative of Mr. Ducheneau’s estate under
the laws of the Commonwealth of Massachusetts. No payments pursuant to this Stipulation shall
be made until petitioner provides the Secretary with documentation establishing petitioner’s
appointment as legal representative of Mr. Ducheneau’s estate. If petitioner is not authorized by
a court of competent jurisdiction to serve as legal representative of the estate of Mr. Ducheneau
at the time a payment pursuant to this Stipulation is to be made, any such payment shall be paid
to the party or parties appointed by a court of competent jurisdiction to serve as legal
representative of the estate of Mr. Ducheneau upon submission of written documentation of such
appointment to the Secretary.
13. In return for the payments described in paragraphs 8 and 9, petitioner, in her
individual capacity and as legal representative of Mr. Ducheneau’s estate, on her own behalf, and
on behalf of the estate of Mr. Ducheneau, and 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 Mr.
Ducheneau resulting from, or alleged to have resulted from, the Hib or meningococcal
vaccinations administered on March 4, 2016, as alleged by petitioner in a petition for vaccine
compensation filed on or about March 27, 2017, in the United States Court of Federal Claims as
petition No. 17-431V.
14. 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.
15. 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.
16. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the Hib or meningococcal vaccines caused Mr.
Ducheneau’s alleged GBS, or any other injury, or his subsequent death.
17. All rights and obligations of petitioner hereunder in her capacity as legal
representative of Mr, Ducheneau’s estate, shall apply equally to petitioner’s heirs, executors,
administrators, successors, and/or assigns.
END OF STIPULATION
Respectfully submitted,
PETITIONER:
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! ,
/JEANNE DUCHENEAU
Ke EY OF RECORD FOR
P I :
RONALD C. HOMER
CONWAY HOMER, P.C.
16 Shawmut Street
Boston, MA 02116
(617) 695-1990
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
22h Wushlr, PNSc, APRN, or
CDR GEORGE REED GRIMES, MD, MPTI
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: isf 22.
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
HEATHER L. Lal
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:
Jana i) Enefsndl
by Weddin L Pen
LARA A. ENGLUND
Assistant Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 307-3013
lara.a.englund@usdoj.gov