Johnson v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-159V
Filed: January 27, 2015
* * * * * * * * * * * * * * * * UNPUBLISHED
KELLY JOHNSON, *
* Special Master Dorsey
Petitioner, *
*
v. *
* Joint Stipulation on Damages;
SECRETARY OF HEALTH * Influenza (Flu) vaccine; Guillain-
AND HUMAN SERVICES, * Barrė Syndrome (GBS).
*
Respondent. *
*
* * * * * * * * * * * * * * * *
Danielle Anne Strait, Maglio Christopher & Toale, PC, Washington, DC, for petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for respondent.
DECISION1
On February 27, 2014, Kelly Johnson (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006).
Petitioner alleged that she suffered from Guillain-Barrė syndrome (“GBS”) as a result of an
influenza (“flu”) vaccine that she received on January 17, 2013. See Petition at 1. Petitioner
further alleged that she experienced the residual effects of these injuries for more than six
months. Id. at 2.
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by
Vaccine Rule 18(b), each party has 14 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).
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 (2006) (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.
1
On January 27, 2015, the parties filed a stipulation, stating that a decision should be
entered awarding compensation.
Respondent denies that the flu vaccine either caused or significantly aggravated
petitioner’s alleged injuries or any other injury, and denies that petitioner’s current disabilities
are the result of a vaccine-related injury. Nevertheless, the parties agree to the joint stipulation,
attached hereto as Appendix A. The undersigned finds the stipulation reasonable and adopts it as
the decision of the Court in awarding damages, on the terms set forth therein.
The parties stipulated that petitioner shall receive the following compensation:
A lump sum of $32,500.00, in the form of a check payable to petitioner. This amount
represent compensation for all damages that would be available under 42 U.S.C. § 300aa-
15(a).
Stipulation ¶ 8.
The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’
stipulation.3
IT IS SO ORDERED.
s/ Nora Beth Dorsey
Nora Beth Dorsey
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
2
I N THE UNI TE D STATES COURT OF FE DERAL CLA I M S
OFFI C E OF SPEC I AL MASTER S
)
KELLY JOH SON. )
)
Petitioner. ) o. 14-1 59V ECF
)
V. ) Special Master Dorsey
)
SEC RETARY OF HEALTH )
AN D HUMA SE RV ICES, )
)
Responde nt. )
``````````````~ )
STI PULATION
The parties hereby sti pulate to the fo llow ing mat1ers:
I. Petitioner. Kelly Johnson, fil ed a petition for vaccine compensation under the
ati onal Vaccine Injury Compensa tion Program. 42 U.S.C. § 300aa- I0 to 34 (the "Vaccine
Program"). The petition seeks compensation fo r inju ries alleged ly related to petitioner' s receipt
of the influenza (.. flu ..) vacc ine. which is contai ned in the Vaccine Injury Table (the "Table"). 42
C.F. R. § I00.J(a).
2. On January 17. 20 13. petitioner rece ived the flu vacc ine in her right arm.
3. The flu vaccine was administe red within the United tates.
4. Peti tioner alleges that. as a resu lt of rece iving the flu vaccine. she suffered from
GuiIlai n-Barre syndrome (..GBS.. ). and that he experienced symptoms of this inj ury for more
than six month s.
5. Petitioner represents that there has been no prior award or cttlement of a civ il action
for damages as a result of her alleged inj uries.
6. Respondent denies that the flu vacc ine either caused or significan tl y aggravated
petiti oner' s alleged injuries or any other injury. and deni es that petiti oner's current d isabi lities
are the result o f a vaccine-related inj ury.
7. M aintaining their above-stated pos iti ons. the parties nevertheless now agree that the
issues between them shall be senled and that a decision should be entered award ing the
compensa tion described in paragraph 8 o f thi Stipu lation.
8. As soon as practicabl e alter an entry o f j udgment reflecti ng a deci ion con istent
w ith the term s o f thi s Stipu lat ion. and after petitioner has filed an election to receive
com pensation pursuant to 42 U.S.C. § 300aa-2 l (a)( I ). the Secretary of H ea lth and Human
Services w ill issue the fo llowing vacc ine compensa ti on payment :
A lump sum of $32.500.0 0. in the fo rm o f a check payabl e to petitioner. T hi s
amount represents compensa tion for al I damages that wou Id be ava ilable under 42
U .. C. § 300aa-1 5(a).
9. As soon as practicab le after the entry o f j udgment on entitlement in th is case. and
after pet itioner has filed both a proper and tim ely election to receive compensa tion pursuant
to
42 U.S.C. § 300aa- 2 I (a)( I ). and an applicatio n. the parties w ill submit to furth er proceed ings
before the special master to award reasonabl e attorn eys' fees and costs incurred in proceed ing
upon thi s petition.
I 0. Petitioner and her attorney represent that compensa tion to be provided pu rsuant to
thi s tipulat ion is not for any item s or serv ices for \\h ich the Program is not prim ari ly liable
under 42 U.S.C. § 300aa- I 5(g). to the extent that payment has been made or can reasonab ly
be
expected to be made under any State compensa ti on programs. insu rance pol icies. Federal or
State health benefits programs (other than T itl e X I X of the Soc ial Securi ty Act (42 U .. C.
§ 1396 et seq.)). or by entities that prov ide hea lth services on a pre- pa id bas is.
2
11 . Payment made pursuant to paragraph 8 of this Stipulation. and any amounts
award ed pursuant to paragraph 9 of th is Stipulation. w ill be made in accordance with 42 U . .C.
§ 300aa- I 5(i), subject to the avai labi Iity o f sufficient statutory funds.
12. T he parties and th eir attorneys furthe r agree and stipul ate that. except for any award
for attorneys· fees and liti gation costs. the money provided pursuant to thi s Stipulation wil l be
used so lely for the benefit o f petiti oner. as contemplate d by a strict construction of 42 U.S.C.
§ 300aa- I 5(a) and (d). and subject to the conditions of 42 U.S.C. § 300aa-l 5(g) and ( h) .
13. In return fo r the pay ments described in paragraphs 8 and 9. pet itioner. in her
indi v idual capacity and on behal fof her heirs. executors. admi nist rators. successors or assigns.
does forever irrevocab ly and unconditionall y release. acq ui t and d ischarge the Un ited States and
the Secretary o f Heal th and Hum an Services from any and al I acti ons. causes of action (includin g
agreements. judgments. claims. damages. loss o f services. expenses and all demands of w hatever
kind or nature) that have been brought. could have been brought. or could be timel y brought in
the Court o f Federal C laims, under the ational Vaccine Injury Compensati on Program. 42
U .S.C. § 300aa- I 0 et seq .. on account o f. or in any way grow ing out of. any and al l known or
unknown. suspected or unsuspected personal injuries to or death o f petitioner resulting from. or
alleged to have resulted from. the flu vaccine admin istered on January 17. 20 13. as alleged by
petitioner in a petition for vaccine compensation filed on or about February 27. 20 14. in the
United States Court o f Federal Claims as petition o. 14-159.
14. I f petitioner should die prior to entry o f jud gment. thi s agreement shall be voidable
upon proper noti ce to the Court on be ha If o f either or both o f th e parti es.
15. I f the special master fai Is to issue a decision in complete con form ity with the term s
o f thi s Stipu latio n or if the Court o f Federal C lai ms fai ls to enter judgment in conformity w ith a
3
dec ision that is in complete con formity w ith the term s of thi s Stipu lation. then the parties·
settlement and thi s Stipulation shall be voidable at the sole d iscretion o f either party.
16. T hi s Stipulation expresses a full and complete negotiated sett lement of li abi li ty and
damages claimed under the ational Childhood Vaccine Injury Act of 1986, as amended. except
as otherwise noted in paragraph 9 above. T here is absolutely no agreemen t on the part o f the
parties hereto to make any payment or to do any act or thing other than is herei n expressly stated
and clearly agreed to. The part ies further agree and understand that the award described in th is
stipu lat ion may refl ect a compromise of the parties· respecti ve positions as to liability and/or
amount of damages. and fu rther. th at a change in the nature of the injury or cond it ion or in the
item s of compen ation sought. is not grounds to modi fy or rev ise th is agreement.
17. T hi s Stipulation shall not be construed as an admi ssion by the United States or the
Secretary of Healt h and Hu man Services that the flu vaccine received by petitioner either caused or
signi fica ntly aggravated petitioner' s all eged injuri es or any other injury.
18. All rights and obligations of petitioner hereunder shall apply eq ually to petitioner" s
heirs, executors. administrators. successors. and/or assigns.
EN D OF STIPULATION
4
Rospect:fully submitted,
PIITITIONER:
~
~'L~ ON
ATTO:QNEY OF RECORD FOR AUTHORJZED REFR,ESENTATIVE
PETITIONER:
v``J-~ ·
~Cy~
Maglio, Christopher & Toale, PA
`` Z-t..
VIN~TANOSKI
Depufy Diroetor
1775 PennsylvatU.a Avenil~.NW, Suite 225 Torts Branch
WashingtQn, DC20006 Civil Division
888"952-5242 U.S. Department of Justioe
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRES ENTAnv E ATTORNEYOFRECO.lIDFOR
OF THE SECRET AR BEALTR RESPONDENT:
AND HUMAN SER
,·
Di.tector~
Division of Inju1·y Senior Trial Attorney
Compensation Programs (DICP) Torts Branch
Healthcare Systems Bureau Civil Division
U.S. -Department ofHeaJ.th and U.S. Department of Justice
Human Services P.O. Box 146
5600 Fishers l..$le Benjamin Franklin Station
Parldawn Building, M.ail Stop l lC-26 Washington, DC 20044-0146
R~ville, MD 20857 (202) 616--4357
5