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

Sn the Guited States Court of Federal Clanns
OFFICE OF SPECIAL MASTERS
No. 17-782V
Filed: March 22, 2022
UNPUBLISHED
PAMELA KIRBY,
Petitioner, ;
V. Joint Stipulation on Damages;
Influenza (“Flu”) vaccine; Multiple
SECRETARY OF HEALTH AND sclerosis ("MS"); Chronic
HUMAN SERVICES Inflammatory Demyelinating
Polyneuropathy (“CIDP”)
Respondent.
Joseph Vuckovich, Maglio Christopher & Toale, Washington, DC, for petitioner.
Camille Collett , U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION"
On June 12, 2017, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,? (the “Vaccine
Act”). Petitioner alleges that she suffered multiple sclerosis (“MS”) and Chronic
Inflammatory Demyelinating Polyneuropathy (“CIDP”). Petition at 2; Stipulation, filed
March 22, 2022, at 4] 4. Petitioner further alleges that she has experienced the residual
effects of her condition for more than six months, that there has been no prior award or
settlement of a civil action for damages as a result of her condition, and that her vaccine
was administered in the United States. Petition at 2; Stipulation at JJ 3-5. “Respondent
denies that petitioner's alleged MS and/or CIDP and their residual effects were caused-
in-fact by her flu vaccine. Respondent further denies that the flu vaccine caused
petitioner any other injury or her current condition. ” Stipulation at J] 6.
Nevertheless, on March 22, 2022, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. | find the stipulation
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted 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).
reasonable and adopt it as the decision of the Court in 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 $200,000.00 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 § 15(a). /d.
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. *
ITIS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
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.
DocuSign Envelope ID: D81CEE54-4C90-4206-8A35-896393774434
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
PAMELA KIRBY, )
)
Petitioner, )
) No. 17-782V
V. ) Special Master Horner
)
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Pamela Kirby (“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 her flu immunization on October 7, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that as a result of receiving the flu vaccine she developed multiple
sclerosis (“MS”) and chronic inflammatory demyelinating polyneuropathy (“CIDP”), and
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 as a result of her condition.
DocuSign Envelope ID: 081CEE54-4C90-4206-8A35-8963937 74434
6. Respondent denies that petitioner’s alleged MS and/or CIDP and their residual effects
were caused-in-fact by her flu vaccine. Respondent further denies that the flu vaccine caused
petitioner 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 $200,000.00 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.
DocuSign Envelope ID: D81CEE54-4C90-4206-8A35-896393774434
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. 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 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 flu vaccination administered on October 7, 2015, as
alleged by petitioner in her petition for vaccine compensation filed on June 12, 2017, in the
United States Court of Federal Claims as petition No. 17-782V.
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.
DocuSign Envelope ID: D81CEE54-4C90-4206-8A35-896393774434
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 flu vaccination caused petitioner to suffer MS
and/or CIDP or any other injury.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
`` `` `` SSS
DocuSign Envelope ID: D81CEE54-4C90-4206-8A35-8963937 74434
Respectfully submitted,
PETITIONER:
Tey Bi
PAMELA KIRBY
ATTORNEY OF RECORD FOR
PETITIONER:
= (oa Ka
“JOSFPH A. VUCKOVICH”
GLIO CHRISTOPHER & TOALE, PA
775 Pennsylvania Avenue, N.W., Suite 225
Washington, DC 2000
(941) 952-5242
jvuckovich@mctlawyers.com
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
George R. Grimes - Digitally signed by George R.
Grimes -S14
$14 Date: 2022.03.09 17:21:04 -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
Dated: 03 l2z/2022.
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
HEATHER L, PEARLMAN
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:
Comte H Loli
bey led ror L Kees Sar-—
CAMILLE M. COLLETT
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-4098
E-mail: Camille.M.Collett@usdoj.gov