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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1308V
UNPUBLISHED
JONATHAN JAROG, Chief Special Master Corcoran
Petitioner, Filed: March 22, 2022
v.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages; Influenza
HUMAN SERVICES, (Flu) Vaccine; Guillain-Barre
Syndrome (GBS)
Respondent.
Kristina Green, Kralovec, Jambois & Schwartz, Chicago, IL, for Petitioner.
Julia Collison, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On May 3, 2021, Jonathan Jarog filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that he suffered Guillain-Barré Syndrome (GBS)
resulting from the administration of an influenza (“flu”) vaccine on November 25, 2019.
Petition at 1; Stipulation, filed on March 22, 2022, ¶¶ 1-2, 4.
In the attached joint stipulation, filed on March 22, 2022, Respondent avers “[t]here
is not a preponderance of the evidence demonstrating that [P]etitioner’s GBS and its
residual effects were due to a factor unrelated to his November 25, 2019 flu vaccine.”
Stipulation at ¶ 5. The stipulation further states that a decision should be entered awarding
compensation. Id. at ¶ 7. I find the stipulation reasonable and adopt it as my decision
awarding damages, on the terms set forth therein.
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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, I agree that the identified material fits within this definition, I 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
1. A lump sum of $206,504.71 in the form of a check payable to Petitioner; and
2. An amount sufficient to purchase an annuity contract, paid to the life insurance
company 3 from which the annuity will be purchased (the “Life Insurance
Company”).
Stipulation at ¶¶ 8-11. These amounts represent compensation for all items of damages
that would be available under Section 15(a). Id. at ¶ 19.
I 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 Court is directed to
enter judgment in accordance with this decision. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
The requirements for the annuity contract, annuity payments, and the Life Insurance Company are
described in detail at ¶¶ 9-10 of the Stipulation.
4
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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
JONATHAN JAROO,
Petitioner, No. 21-l 308V
Chief Special Master Corcoran
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
I. Jonathan Jarog ("petitioner") filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l Oto 34 (the "Vaccine
Program"). The petition seeks compensation for an injury allegedly related to petitioner's receipt
of an influenza ("flu") vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42
C.F.R. § I 00.3(a).
2. On November 25, 2019, petitioner received a flu vaccine.
3. The vaccine was administered in the United States.
4. Petitioner alleges that he suffered Ou ilia in-Barre Syndrome ("OBS") as a resu lt of
receiving the flu vaccine within the time period set forth in the Table. Petitioner further alleges
that he experienced the residual effects his OBS for more than six months.
5. There is not a preponderance of the evidence demonstrating that petitioner's OBS
and its residual effects were due to a factor unrelated to his November 25, 2019 flu vaccine.
6. Petitioner represents that there has been no prior award or settlement of a civil
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action for damages as a result of his OBS and residual effects.
7. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine
Program for his OBS. Therefore, a decision should be entered awarding the compensation
described in paragraph 8 of this Stipulation.
8. As soon as practicable after an entry ofjudgment 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)(]), the Secretary of Health and Human Services will issue the
following vaccine compensation payment:
a. A lump sum of $206,504.71, in the fo rm of a check payable to petitioner; and
b. An amount sufficient to purchase the annuity contract described in paragraph I 0
below, paid to the life insurance company from which the annuity will be
purchased (the "Life Insurance Company").
9. The Life Insurance Company must have a minimum of $250,000,000.00 capital
and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company
must have one of the following ratings from two of the following rating organizations"
a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;
b. Moody's Inv estor Service Claims Paying Rating: Aa3, Aa2, Aa 1, or Aaa;
c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-, AA,
AA+, or AAA;
d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating:
AA-, AA, AA+, or AAA.
1O. The Secretary of Health and Human Services agrees to purchase an annuity
contract from the Life Insurance Company for the benefit of petitioner, pursuant to which the Life
Insurance Company will agree to make payments as follows: beginning as soon as practicable
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after the date of judgment, $304.17 per month for IO years life contingent.
Petitioner will continue to receive the annuity payments from the Life Insurance Company
only so long as petitioner is alive at the time that a particular payment is due. Written notice to
the Secretary of Health and Human Services and the Life Insurance Company shall be provided
within twenty (20) days of petitioner's death.
11. The ann uity contract will be owned solely and exclusively by the Secretary of
Health and Human Serv ices and will be purchased as soon as practicable following the entry of a
judgment in conformity with this Stipulation. The parties stipulate and agree that the Secretary of
Health and Human Services and the United States of America are not responsible for the payment
of any sums other than the amounts set forth in paragraph 8 herein and the amounts awarded
pursuant to paragraph 12 herein, and that they do not guarantee or insure any of the future annuity
payments. Upon the purchase of the annuity contract, the Secretary of Health and Human
Services and the Un ited States of America are released from any and all obligations with respect
to future annuity payments.
12. 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-2 I (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.
13. Petitioner and his attorney representthat they have identified to respondent all
known sources of payment for items or services for which the Program is not primarily liable
under42 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 serv ices on a pre-paid basis.
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14. 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),
subject to the availability of sufficient statutory funds.
15. The parties and their attorneys further agree and stipulate that, except for any
award for attorneys' 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-l 5(a) and (d), and subject to the
conditions of 42 U.S.C. § 300aa-l 5(g) and (h).
16. In return for the payments described in paragraph 8, and any amount awarded
pursuant to paragraph 12, petitioner, in his individual capacity, and on behalf of his heirs,
executors, administrators, successors, or assigns, does fo rever 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-l 0 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 vaccine
administered on November 25, 2019, as alleged in a Petition filed on May 3, 2021, in the United
States Court of Federal Claims as petition No. 2 l-1308V.
17. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
18. If the special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the United States Court of Federal Claims fails to enter judgment in
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conformity with a decision that is in complete conformity with the terms of this Stipulation, then
the parties' settlement and this Stipulation sha ll be voidable at the sole discretion of either party.
19. 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 12 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 ofthe injury or condition or in the
items of compensation sought, is not grounds to modify or revise this agreement.
20. The 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 injury or any
other injury or his current condition; however, petitioner has satisfied the Table criteria to
establish entitlement to compensation.
2I. Petitioner hereby authorizes respondent to disclose documents filed by petitioner in
this case consistent with the Privacy Act and the routine uses described in the National Vaccine
Injury Compensation Program System of Records, No. 09-15-0056
22. All rights and obligations of petitioner shall apply equally to petitioner's heirs,
executors, administrators, successors, and/or assigns .
END OF STIPULATION
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Respectfully submined,
PETITIONER:
ATTORNEYOFRECORDFOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
K::::mbcis&Schwanz
K T .GREEN
60 W. Randolph Street. 4 th Floor
HEATHER L. PEARLMAN
Deputy Director
Torts Branch
Chicago. IL 6060 I Civil Division
(312) 782-2525 ext. 339 U.S. Department of Justice
kgreen@kjs-law.com P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND H lJMAN SERVICES:
George R. Grimes - Olgltally signed 17, George R.
Grifflfl -S 14
}v, ,.._ rt ~
S14 Oau:: 2022.Dl.10 16~7:54-05'00'
by&~U~
CDR GEORGE REED GRIMES, MD, MPH JULIA M. COLLISON ..
Director. Division of Injury Trial Attorney
Compensation Programs Torts Branch
Health Systems Bureau Civil Division
Health Resources and Services U.S. Department of Justice
Administration P.O. Box 146
U.S. Department of Health Benjamin Franklin Station
and Human Services Washington, DC 20044-0146
5600 Fishers Lane, 08N 146B (202) 305-0102
Rockville, MD 20857 julia.collison@usdoj.gov
Dated: .1>.3.~22....
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