Rich v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
JULIE RICH, *
* No. 15-1329v
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: February 13, 2017
*
SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine;
AND HUMAN SERVICES, * optic neuritis; vision loss.
*
Respondent. *
******************** *
Dianna L. Stadelnikas, Magnolia, Christopher, and Toale, PA, Sarasota, FL, for
Petitioner;
Amy P. Kokot, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On February 10, 2017, the parties filed a joint stipulation concerning the
petition for compensation filed by Julie Rich on November 5, 2015. 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 November 6, 2010, caused her to develop optic neuritis and/or vision loss in her
right eye. 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
optic neuritis, vision loss in her right eye, or any other injury.
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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. A lump sum payment of $175,000.00 in the form of a check
payable to petitioner, Julie Rich. This amount represents
compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a); and
b. A lump sum payment of $148.91, which amount represents
reimbursement of a State of Illinois Medicaid lien , in the form of
a check payable jointly to petitioner and:
Illinois Department of Healthcare and Family Services
Bureau of Collections
Technical Recovery Section
P.O. Box 19174
Springfield, IL 62794-9174
ATTN: Mr. Kevin Thornton
Kevin.Thornton@illinois.gov
Petitioner agrees to endorse this payment to the Illinois Department of
Healthcare and Family Services.
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 15-1329V according to this decision
and the attached stipulation.2
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 STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
JULIE RICH, )
)
. Petitioner, )
) No. l 5- I 329V (ECF)
v. ) Special Master Moran
)
SECRETARY OF HEALTH AND )
HUMAN SERV ICES, )
)
Respondent. )
~~~~~~~~~~~~~~~)
STIPULATION
The parties hereby stipulate to the fo llowing motters:
I. Julie Rich, peti tio ner, fil ed a petition for vaccine compensation under the National
Vaccine Inj ury 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 Vacc ine Injury Table (the ''Table"),
42 C.F.R. § 100.3(a).
2. Petitione1· received a flu vaccination on or about October 30, 20 13.
3. The vacci ne was administered within the United States.
4. Petitioner alleges that the flu vaccine caused her to deve lop optic neuritis and/or vision
loss in her right eye. Petitioner further alleges that she experienced the residual effects of these
i1tjuries for more tha n six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of her condition.
6. Respondent denies thnt the flu vaccine admin istered on or about October 30, 20 13, is
the cause of petitioner's alleged optic neuritis and/or vision loss in her right eye and/or any other
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injury or her current condition.
7. Maintaining their above-stated positions, the pa1ties 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 th is Stipu lation.
8. As soon as practicable after an entry of judgment reflecting a decision consistent with
the terms of this Stipu lation, and after petitioner has filed an election to rece ive compensation
pursuant to 42 U.S.C. § 300aa-2 l(a)( 1), the Secretary of Health and Human Serv ices wil l issue
the fo llowing vaccine compensation payments:
a. 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 avai lable under 42
U.S.C. § 300aa-l S(a); and
b. A lump sum of $ 148.9 l, which amount represents reimbursement of a State of
Illinois Med icaid lien, in the form of a check payable jointly to petitioner and:
Ill inois Department of 1-lealthcare and Family Services
Bureau of Col lections
Techn ical Recovery Section
P.O. Box 191 74
Spri ngfield, IL 62794-91 74
Atln: Mr. Kevin Thornton
Kevin.Thornton@i llinois.gov
Petitioner agrees to endorse this check to the 11 linois Department of Healthcare and
Fami ly Services.
9. As soon as practicable after the entry of judgment on entitlement in this case, and after
petitioner has fried both a proper and ti mely election to receive compensation pursuant to 42
U.S.C. § 300aa-2 I(a)( I), and an applicati on, the parties wi ll submit to further proceedings befo re
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the special master to awurd reasonable attorneys' fees and costs incurred in proceed ing upon this
petition.
10. Petitioner and her attorney represent that they have identified to respondent a ll
known sources of payment for items or services for which the Program is not primarily Iiable
under 42 U.S.C. § 300aa- I 5(g), including State compensation programs, insurance policies,
Federal or State hea lth 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. Pay ment made purs uant to paragraph 8 of this Stipulation, and any amount awa rded
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 suffic ient statuto ry funds.
12. The parties and their atlori1eys furth er agree and stipulate that, except for any award
for attorneys' fees and litigation costs, and past unreimbursable expenses, the money prov ided
pursuant to this Stipulation wi ll be used so lely 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 cond itions of 42 U.S.C.
§ 300aa- I5(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 and/or
assigns, does forever irrevocably and unconditionally release, acq uit and discharge the United
States and the Secretary of Hea lth and Human Services from any ancl all actions or causes of
action (including agreements, judgments, claims, damages, loss of services, expenses and all
demands of whatever kind or nature) tlrnt have been brought, could have been bro ught, or could
be timely brought in the Court of Federal Claims, under the National Vaccine Inj ury
Compei1sation Program, 42 U.S.C. § 300aa- I 0 ct seq., on account of, or in any way growing out
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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 flu vaccination administered on or
about October 30, 2013, as al leged by petitioner in a petition for vaccine compensation fi led on
or about November 5, 20 15, in the United States Court of Federal Claims as petition No. 15,
1329V.
14. If petitioner should die prior to entry of j udgment, this agreement shall be voidable
upon proper notice to the Courl on behalf of either or both of the parties.
15. If the special master fai ls to issue a decision in complete confo rmity with the terms
of th is Stipulation or if the Court of Federal Claims foils to enter j udgment 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 pa1ty.
16. Thi s Stipulation expresses a full and compl ete negotiated settlement of liability and
damages claimed under the National Childhood Vaccine Inj ury Act of 1986, except as otherwise
noted in paragraph 9 above. There is absolutely nc:i 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. T he parties further agree and understand that the award described in th is Stipulation
may reflect a compromise of the parties' respective positions as to liability and/ol' amount of
damages, and further, that a change in the nature of the injury or condition or in the items of
compensation sol1ght, is not grounds to modify or revise this agreement.
17. Thi s Stipulation shal l 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 optic
neuritis and/or vision loss in her right eye and/or any other injury or her current condition .
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18. All rights a nd obligations of petitioner hereunder shall apply equally to petiti oner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATJON
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Respectfully submitted,
PETITIONER:
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ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATlVE
PETITIONER: OF THE ATIORNEY GENERAL:
RINE E. REEVES
Maglio Chnstopher and Toale, P.A. Deputy Director
1605 Main Street, Suite 710 Torts Branch
Sarasota, FL 34236 Civil Division
Tel: (888) 952-5242 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington; DC 20044-0 146
ATTORNEY OF RECORD FOR
RESPONDENT:
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_.__._...._,.--.._,_.~A-
1-R ,-M
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D-. ~-'--'--~~~ AMY:KO~
K~O-
T~~~~~-
Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch
Healthcare Systems Bureau Civ il Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 08N J46B Washington, DC 20044-0 146
Rockville, MD 20857 Tel: (202) 6 16-4 11 8
Dated: .f)./10/d-,0 11
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