Brawner v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1719V
UNPUBLISHED
EMILY BRAWNER, Chief Special Master Corcoran
Petitioner, Filed: November 21, 2019
v.
SECRETARY OF HEALTH AND Special Processing Unit (SPU); Joint
HUMAN SERVICES, Stipulation on Damages; Influenza
(Flu) Vaccine; Guillain-Barre
Respondent. Syndrome (GBS)
John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner.
Gabrielle Manganiello Fielding, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON JOINT STIPULATION 1
On November 6, 2018, Emily Brawner 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 she suffered from Guillain Barre Syndrome
(“GBS”) as a result of an influenza (“flu”) vaccination administered on November 6,
2015. Petition at 1; Stipulation, filed November 20, 2019, at ¶¶ 1, 4. Petitioner further
alleges that she received the vaccination within the United States, that she experienced
the residual effects of this condition for more than six months, and that there has been
no prior award or settlement of a civil action for damages on her behalf as a result of her
condition. Petition at 11; Stipulation at ¶¶ 3-5. “Respondent denies that Petitioner
sustained a GBS Table injury, and further denies that the flu vaccine caused Petitioner’s
alleged GBS or any other injury or condition.” Stipulation at ¶ 6.
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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 ruling 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.
2National 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).
Nevertheless, on November 20, 2019, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. I find the
stipulation reasonable and adopt it as my decision awarding damages, on the terms set
forth therein.
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
• A lump sum of $11,202.45, which amount represents satisfaction of
the State of Kansas Medicaid lien for services related to Petitioner’s
alleged vaccine injury, in the form of a check payable jointly to
petitioner and:
Equian
P.O. Box 32100
Louisville, KY 40232
Equian Event #: 45200391
Petitioner agrees to endorse this check to Equian.
• A lump sum of $50,000.00 in the form of a check payable to
Petitioner. Stipulation at ¶ 8. This amount represents compensation for
all items of damages that would be available under § 15(a). Id.
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 the court is directed
to enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 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
)
EMILY BRAWNER, )
)
Petitioner, )
) No. 18-1719V (ECF)
V. ) Chief Special Master Corcoran
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
1. 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 a flu vaccine on or about November 6, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained a Table injury, Guillain Barre Syndrome ("GBS"),
within the Table timeframe after receiving a flu vaccine and that she experienced the residual
effects of this condition 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.
6. Respondent denies that petitioner sustained a GBS Table injury, and further denies
that the flu vaccine caused petitioner's alleged GBS or any other injury or 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-2l(a)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payments:
a. A lump sum of $11,202.45, which amount represents satisfaction of the State of
Kansas Medicaid lien for services rendered to Emily Brawner related to her alleged
vaccine-injury, in the form of a check payable jointly to petitioner, Emily Brawner, and
Equian
P.O. Box 32100
Louisville, KY 40232
Equian Event#: 45200391
Petitioner agrees to endorse this check to Equian.
b. A lump sum of $50,000.00, in the form of a check payable to petitioner. This
amount represents compensation for all remaining 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-2l(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.
2
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 benefits programs (other than Title XIX of the Social Security Act (42 U.S.C.
§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.
11. Payment made pursuant to paragraph 8 of this Stipulation, 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 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-15(a) and (d), and subject to the conditions of 42 U.S.C.
§§ 300aa-l 5(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, 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
3
alleged to have resulted from, the flu vaccine administered on or about November 6, 2015, as
alleged by petitioner in a petition for vaccine compensation filed on November 6, 2018, in the
United States Court of Federal Claims as petition No. 18-1719V.
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.
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 vaccine caused petitioner's alleged GBS or
any other injury or her 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
4
Respectfully submitted,
PETITIONER:
~R0~
ATTORNEY OF RECORD FOR AUTHORIZED REPRSENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
~RINE E. REEVES
-
Howie Law, P.C. Deputy Director
2608 Hibernia St. Torts Branch
Dallas, Texas 75204 Civil Division
Tel: (214) 622v6340 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
TAMARA OVERBY
Acting Director, Division of Injury Assistant Director
Compensation Programs (DICP) Torts Branch
Healthcare Systems Bureau Civil Division
Health Resources and Services Administration U.S. Department of Justice
U.S. Department of Health and Human Services P.O. Box 146
5600 Fishers Lane Benjamin franklin Station
Parklawn Building, Mail Stop 08N146B Washington, DC 20044-0146
RockvilJe, MD 20857 Tel : (202) 616-4359
gabrielle. fielding@usdoj.gov
5