Chavolla-Zacarias v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
LAURA CHAVOLLA-ZACARIAS, *
* No. 16-772V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: February 9, 2017
*
SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine;
AND HUMAN SERVICES, * cerebellar ataxia; speech problems.
*
Respondent. *
******************** *
Jeffrey S. Pop, Jeffrey S. Pop, Attorney at Law, Beverly Hills, CA, for Petitioner;
Lara A. Englund, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On February 8, 2017, the parties filed a joint stipulation concerning the
petition for compensation filed by Laura Chavolla-Zacarias on June 29, 2016. In
her petition, petitioner alleged that the influenza vaccine, which is contained in the
Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which she received
on September 18, 2014, caused her to suffer cerebellar ataxia and speech problems.
Petitioner further alleges that she suffered the residual effects of this injury for
more than six months. 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.
Respondent denies that the influenza vaccine caused petitioner to suffer
cerebellar ataxia, speech problems, or any other injury.
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
Nevertheless, the parties agree to the joint stipulation, attached hereto. The
undersigned finds said stipulation reasonable and adopts it as the decision of the
Court in awarding damages, on the terms set forth therein.
Damages awarded in that stipulation include:
A lump sum payment of $62,500.00 in the form of a check payable to
petitioner, Laura Chavolla-Zacarias. This amount represents
compensation for all damages that would be available under 42 U.S.C. §
300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 16-772V according to this decision
and the attached stipulation.2
Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
2
IN THE UNITED ST ATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
LAURA CHA VOLLA-ZACARIAS, )
)
Petitioner, )
)
v. ) No. 16-772V
) Special Master Christian Moran
SECRETARY OF )
HEAL TH AND HUMAN SERVICES, )
)
Respondent. )
STIPULATION
The parties hereby stipulate to the fo llowing matters:
I. Petitioner Laura Chavolla-Zacarias ("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 the influenza ("flu") vaccine, which vaccine is contained in the Vaccine
Injury Table (the "Table"), 42 C.F.R. § I 00.3 (a).
2. Petitioner received a flu vaccine on or about September 18, 2014.
3. The vaccine was administered within the United States.
4. Petitioner alleges that the flu vaccine caused her to develop cerebellar ataxia and
speech problems and that she experienced residual effects of these injuries for more than six
months.
5. Petitioner represents that there has been no prior award or settlement of a civi l action
for damages as a result of her condition.
6. Respondent denies that the flu vaccine is the cause of petitioner' s a lleged cerebellar
ataxia and speech problems or any other injury or her current 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 thi s 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 lump sum of $62,500.00 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-1 5(a).
9. As soon as practicable atter the entry of judgment on e ntitlement in thi s case, and after
petitioner has filed both a proper and timely election to receive compensation pursuant to 42
U.S.C . § 300aa-21 (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.
I 0. Petitioner and he r attorney re present 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-l 5(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 services on a pre-paid basis.
11 . Payment 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- l 5(i), subject
to the availability of sufficient statutory funds.
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12. The parties and their attorneys further agree and stipu late that, except for any award
for attorneys' fees and liti gation 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 of42 U.S.C.
§ 300aa-1 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 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-I 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 tlu vaccination administered on September 18, 20 14,
as alleged by petitioner in a petition for vaccine compensation filed on or about June 29, 20 16, in
the United States Court of Federal Claims as petition No. 16-772V.
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 fai ls 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 confom1ity with a
decision that is in complete conformity with the terms of this Stipulation, then the parties'
settlement and thi s Stipulation shall be voidable at the sole discretion o f either party.
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16. This Stipul ation 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
cerebellar ataxia and speech problems 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
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Respectfully subm itted,
PETITIONER:
12(_
LAURA CHA YOLLA-ZACARIAS
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIYE
PETITIONER: OF THE ATTORNEY GENERAL:
JE~~
Jeffrey S. Pop & Associates
RINE E. REEVES .
Deputy Director
9107 Wilshire Blvd., Suite 700 Torts Branch
Beverly Hills, CA 90210 ·Civil Division
(310) 273-5462 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 ALTH RESPONDENT:
AND HUMAN SERYIC
N
~k~
LARA A. ENGLUND
Director, Division of Trial Attorney
Injury Compensation Program s Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Park lawn Building, Mail Stop 08N 1468 Washington, DC 20044-01 46
Rockville, MD 20857 (202) 307-30 13
Dated: __.7< j _'%_,)'--1_7_ _ __
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