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

Sn the Gnited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: March 22, 2022
* * * * * * * * * * * * *
DAVID M. ROBERTS, * Unpublished
*
Petitioner, * No. 18-725V
*
V. * Special Master Gowen
*
SECRETARY OF HEALTH * Decision on Stipulation;
AND HUMAN SERVICES, * Influenza (‘flu’); Transverse
* myelitis.
Respondent. *
*
* > * FF * * KF KK HK HK KK HK
Nicole K. Nobbe, Moore, Heffernan, et al., LLP, Sioux City, IA, for petitioner.
Madelyn Weeks, Dept. of Justice, Washington, D.C., for respondent.
DECISION ON STIPULATION!
On May 22, 2018, David M. Roberts (“petitioner”), filed a petition in the National
Vaccine Injury Program.” Petition (ECF No. 1). Petitioner received an influenza (“flu”) vaccine
on October 14, 2015. Jd. Petitioner alleges that as a result of receiving the flu vaccine, he
suffered from transverse myelitis. Jd. at { 7.
On March 22, 2022, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation (ECF No. 66). Respondent denies that
the flu vaccine is the cause of petitioner’s alleged injuries, or any other injury or his current
condition. /d. at [ 6. Nevertheless, maintaining their respective positions, the parties now agree
that the issues between them shall be settled and that a decision should be entered awarding
' Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the
decision.” /d. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. /d.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
compensation to the petitioner according to the terms of the stipulation attached hereto as
Appendix A. Id. at {7.
The stipulation provides:
1) A lump sum of $175,000.00 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).
I adopt the parties’ stipulation attached hereto, and award compensation in the amount
and on the terms set forth therein. The Clerk of the Court SHALL ENTER JUDGMENT in
accordance with the terms of the parties’ stipulation.*
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
DAVID M. ROBERTS, )
)
Petitioner, ) No. 18-725V
) Special Master Gowen
V. ) ECF
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. David M. Roberts (“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 the vaccine on or about October 14, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he suffered from transverse myelitis (“TM”) which was
caused in fact by his flu vaccine. He further alleges that he experienced the residual effects of
this condition or more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil
action for damages arising out of the alleged vaccine injury.
6. Respondent denies that the vaccine caused petitioner’s alleged injuries or any other
-l-
injury; and denies that his current 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 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 $175,000.00 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 any
proceeding upon this petition.
10. Petitioner and petitioner’s attorney represent 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 XLX of the Social Security
Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis,
and 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).
-2-
11. Payment(s) 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
petitioner’s individual capacity, and on behalf of petitioner’s 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 al] demands of whatever kind or nature) that have been brought, could
have been brought, or could be timely brought in the United States 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 vaccination as alleged by petitioner in a petition for vaccine compensation
filed on or about May 22, 2018, in the United States Court of Federal Claims as petition No.
18-725V.
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.
-3-
15. Ifthe 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 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 vaccine caused petitioner’s alleged injury or
any other injury or petitioner’s 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:
ATTORNEY OF RECORD FOR
PETITIONER:
(ype ble
RICHARD H. MOELLER \_ ©
MOORE, CORBETT, HEFFERNAN,
MOELLER & MEIS, LLP
300 U.S. Bank Building
501 Pierce Street
P.O. Box 3207
Sioux City, [A 51102
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
. Digitally signed by George R.
George R. Grimes -S14 Grimes-si4
Date: 2022.02.18 14:23:30 -05'00'
CDR GEORGE REED GRIMES, MD, MPH
Director, Division of Injury
Compensation Programs
Healthcare Systems Bureau
U.S. Department of Health
and Human Services
5600 Fishers Lane
Parklawn Building, Mail Stop 08-N146B
Rockville, MD 20857
Dated: O3 lzztw7
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
2d 9 AS Yoo Lan
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:
& WweetA
i.
Ha
by
MADELYN E. WEEKS
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 305-3262
an tinn_.