Hernandez v. Secretary of Health and Human Services

Sn the Gunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: January 25, 2022
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SILVIA HERNANDEZ, * UNPUBLISHED
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Petitioner, * No. 18-731V
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V. * Special Master Dorsey
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SECRETARY OF HEALTH * Decision Based on Stipulation;
AND HUMAN SERVICES, * Tetanus-Diphtheria-Acellular
* Pertussis (“Tdap”) Vaccine;
Respondent. * Guillain Barré Syndrome (“GBS”).
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Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.
Debra Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION BASED ON STIPULATION'
On May 23, 2018, Silvia Hernandez (“petitioner”) filed a petition in the National Vaccine
Injury Compensation Program.” Petitioner alleged that as a result of a tetanus-diphtheria-
acellular pertussis (“Tdap”) vaccine on December 27, 2016, she developed Guillain Barré
syndrome (“GBS”). Petition at 1 (ECF No. 1).
On January 25, 2022, the parties filed a stipulation recommending an award of
compensation to petitioner. Stipulation (ECF No. 62). Respondent denies that petitioner’s GBS,
or any other injury, was caused-in-fact by a Tdap vaccination. Id. at | 6. Nevertheless, the
' Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
* 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. § 300aa.
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 stipulate that petitioner shall receive the following compensation:
(1) A lump sum of $153,102.00 in the form of a check payable to petitioner; and
(2) A lump sum of $7,592.00 representing reimbursement of a Medicaid lien for
services rendered to petitioner by the State of California, in the form of a check
payable jointly to petitioner and
California Department of Health Care Services
Re: DHCS Account No. C94779759F-VAC03
Recovery Branch — MS 4720
P.O. Box 997421
Sacramento, CA 95899-7421,
This amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a). Stipulation at J 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
Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.*
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
> Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
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SILVIA HERNANDEZ,
No. 18-731V
Special Master Dorsey
Petitioner,
Vv.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
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Respondent.
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STIPLLATION
The partics hereby stipulate to the following matters:
I, 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 secks compensation for injuries allegedly related to petitioner’s receipt of the tetanus,
diphtheria, acellular pertussis (“Tdap") vaccine, which vaccine is contained in the Vaccine Injury
Table (the “Table”), 42 C.F.R. § 100.3 (a).
Zs Petitioner received a Tdap vaccination on December 27, 2016.
3. The vaccine was administered within the United States.
4, Petitioner alleges that her Guillain-Barre Syndrome was caused-in-fact by a Tdap
vaccine.' She further alleges that she has 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 on her behalf as a result of her condition.
' In the petition, petitioner stated that she was asserting “a Table case for GBS.” but GBS ts nota Table injury for
the Tdap vaccine See 42 CFR. § 100.3.
6. Respondent denies that petitioner's alleged GBS, or any other injury, was caused-
in-fact by a Tdap vaccination,
Ti 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 clection to receive
compensation pursuant to 42 U.S.C. § 300aa-2 I(a)(1). the Secretary of Health and Human
Services will issue the following vaccine compensation payments:
A. A lump sum payment of $153,102.00 in the form of a check payable to petitioner;
and
B. A lump sum payment of $7,592.00° representing reimbursement of a Medicaid
lien for services rendered to petitioner by the State of California, in the form ofa
check payable jointly to petitioner and:
California Department of Health Care Services
Re: DHCS Account No. C947797S9F-VACO3
Recovery Branch — MS 4720
P.O. Box 997421
Sacramento, CA 95899-7421.
Petitioner agrees to endorse this check to the California Department of Health Care
Services. Petitioner also agrees that these amounts represent compensation for all damages that
would be available under 42 U.S.C. § 30Q0aa-1S(a).
9, As soon as practicable afier 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
? This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or
cause of action the State of California may have against any individual as a result of any
Medicaid payments the California Medicaid Program has made to or on behaif of Silvia
Hernandez as a result of her alleged vaccine-related injury suffered on or about December 27,
2016, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h).
a
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 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 bencfits programs (other than Title X1X of the Social Security Act (42 U.S.C.
$ 1396 et scq.)), or by entities that provide health services on a pre-paid basis.
Oi. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 9 of this Stipulation will be made in accordanee with 42 U.S.C. § 300aa-15(1), 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 bencfit 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-1 5(yz) and (h).
Ed: 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, a Tdap vaccination administered on December 27, 2016,
as alleged by petitioner in a petition for vaccine compensation filed on or about May 23, 2018, in
the United States Court of Federal Claims as petition No. 18-731V.
14. If petitioner should dic 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.
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 petitioner's GBS, or any other injury, was caused-
in-fact by a Tdap vaccination.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner's heirs. executors. administrators. successors, and/or assigns,
END OF STIPULATION
or
Respectfully submitted,
PETITIONER:
ATTORNEY OF RECORD FOR
PETITIONER:
-EAH V. DURANT, ESQ
Law Offices of Leah V. Durant, PLLC
1717 K Street NW, Suite 900
Washington, DC 20006
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Dale Waiter, PN, Sa, AF KN, Ov
CDR GEORGE REED GRIMES. wp Arn
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, 0O8N146B
Rockville, MD 20857
Dated: olf2@s {2oz~z
6
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:
Pekia Oalbtean Beyer
lo LP caAr~
DEBRA A. FILTEAU BEGLEY
Senior Trial Atlomey
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-4181
Email: debra. begley@usdoj.zov