Wilcox v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
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CURT WILCOX, * No. 14-813V
*
Petitioner, * Special Master Moran
*
v. * Filed: March 11, 2015
*
SECRETARY OF HEALTH * Stipulation; Influenza (“flu”) vaccine;
AND HUMAN SERVICES, * Guillain-Barré syndrome (“GBS”).
*
Respondent. *
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Allison Haskins, Maglio, Christopher & Toale, PA, Sarasota, FL, for Petitioner;
Adriana Teitel, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On March 9, 2015, respondent filed a joint stipulation concerning the
petition for compensation filed by Curt Wilcox on September 4, 2014. In his
petition, Mr. Wilcox alleged that the influenza (“flu”) vaccine, which is contained
in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he
received on October 24, 2012, caused him to sustained a vaccine-related injury
diagnosed as Guillain-Barré Syndrome (“GBS”) that was caused-in-fact by the flu
vaccine. Petitioner further alleges that he experienced the residual effects of his
injury for more than six months. Petitioner represents that there has been no prior
award or settlement of a civil action for damages as a result of his condition.
1
The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the party has 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.
Respondent denies that petitioner’s alleged GBS and residual effects were
caused-in-fact by the flu vaccine. Respondent further denies that the flu vaccine
caused petitioner any other injury or his current condition.
Nevertheless, the parties agree to the joint stipulation, attached hereto as
“Appendix A.” 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 of $255,000.00 in the form of a check payable to petitioner,
Curt Wilcox. 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 14-813V according to this decision
and the attached stipulation.2
Any questions may be directed to my law clerk, Mary Holmes, 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
Case 1:14-vv-00813-UNJ Document 23 Filed 03/09/15 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
CURT WILCOX,
Petitioner,
v. No. 14-813V
Special Master Moran
ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner Curt Wilcox (“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 vaccine (“flu”), which vaccine is contained in the Vaccine Injury Table (the
“Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received his flu immunization on October 24, 2012.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he sustained a vaccine-related injury diagnosed as Guillain-
Barre Syndrome (“GBS”) that was caused-in-fact by the flu vaccine. He further alleges that he
experienced the residual effects of his injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of his condition.
Case 1:14-vv-00813-UNJ Document 23 Filed 03/09/15 Page 2 of 5
6. Respondent denies that petitioner’s alleged GBS and residual effects were caused-in-
fact by the flu vaccine. Respondent further denies that the flu vaccine caused petitioner any
other injury or his 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 this Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $255,000.00 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-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-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 his attorney represent 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-15(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.
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11. Payments 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-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 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 of 42 U.S.C.
§ 300aa-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in his
individual capacity, and on behalf of his 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, the flu vaccination administered on October 24, 2012, as
alleged by petitioner in a petition for vaccine compensation filed on September 4, 2014, in the
United States Court of Federal Claims as petition No. 14-813V.
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.
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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 vaccination caused petitioner to suffer GBS
or any other injury.
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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