Dagenhart v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 9-518V
(Not to be published)
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JOSEPH DAGENHART and CYNTHIA DAGENHART, *
as Parents and Legal Representatives of their minor * Filed: July 1, 2014
daughter N.D., *
* Decision by Stipulation;
Petitioners, * Damages; Varicella Vaccine;
* Encephalitis; Intractable
v. * Seizure Disorder; Personality
* and Behavior Changes
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
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Ramon Rodriguez, III, Rawl, McNelis and Mitchell, P.C., Richmond, VA, for Petitioners.
Lynn Ricciardella, U.S. Dep’t of Justice, Washington, DC, for Respondent
DECISION AWARDING DAMAGES 1
On August 7, 2009, Petitioners Joseph and Cynthia Dagenhart filed a petition on behalf
of their minor daughter N.D., seeking compensation under the National Vaccine Injury
Compensation Program (“the Vaccine Program”). 2 Petitioners allege that N.D. suffered
1
Because this decision contains a reasoned explanation for my action in this case, I will post this
decision on the United States Court of Federal Claims’ website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as
amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. § 300aa-12(d)(4)(B),
however, the parties may object to the published decision’s inclusion of certain kinds of
confidential information. Specifically, under Vaccine Rule 18(b), each party has 14 days within
which to request redaction “of any information furnished by that party: (1) that is a trade secret
or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted
invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the
public. (Id.)
2
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,
encephalitis, an intractable seizure disorder, and personality and behavior changes as a result of
receiving the varicella vaccine.
Respondent denies that N.D.’s encephalitis, intractable seizure disorder, personality and
behavior changes or any related medical problems were caused by the receipt of the varicella
vaccine. Nonetheless both parties, while maintaining their above-stated positions, agreed in a
stipulation filed July 1, 2014 that the issues before them can be settled, and that a decision should
be entered awarding Petitioner compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’
stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms
set forth therein.
The stipulation awards:
a) A lump sum of $5,547.32, which amount represents reimbursement of the
Commonwealth of Virginia Medicaid lien, in the form of a check payable
jointly to petitioners and
Department of Medical Assistance Services
Accounts Receivable Unit, TPLC, 5th Floor
600 E. Broad Street
Richmond, VA 23219
Petitioners agree to endorse this check to the Department of Medical
Assistance Services; and
b) A lump sum of $500,000.00 in the form of a check payable to Petitioners. This
amount represents compensation for all remaining damages that would be
available under 42 U.S.C. § 300aa-15(a).
Stipulation ¶ 8.
I approve a Vaccine Program award in the requested amount set forth above to be made
to Petitioners. In the absence of a motion for review filed pursuant to RCFC Appendix B, the
clerk of the court is directed to enter judgment herewith. 3
42 U.S.C.A. ' 300aa-10-' 300aa-34 (West 1991 & Supp. 2002). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. ' 300aa.
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly (or
separately) filing notice(s) renouncing their right to seek review.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master