Kelley v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-505V
(Not to be published)
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*
B.K., a minor by his parent *
KATHERINE M. KELLEY, *
*
Petitioner, * Filed: January 7, 2016
*
v. * Decision by Stipulation; Damages;
* Influenza (“Flu”) Vaccine;
* Guillain-Barré Syndrome (“GBS”).
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
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Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for Petitioner.
Glenn A. MacLeod, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On June 12, 2014, Katherine M. Kelley filed a petition on behalf of her minor child B.K.,
seeking compensation under the National Vaccine Injury Compensation Program.2 Petitioner
alleges that B.K. suffered from Guillain-Barré syndrome (“GBS”) and related complications as a
result of his October 26, 2011 receipt of the influenza (“flu”) vaccine.
Respondent denies that the flu vaccine caused B.K. to suffer from GBS or any other injury
and further denies that his current disabilities are sequela of a vaccine-related injury. Nonetheless
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 (Dec. 17, 2002) (current version at 44 U.S.C. § 3501 (2014)). As provided by 42
U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the posted 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. 3758, codified as amended, 42 U.S.C.A. ' 300aa-10 to ' 300aa-34 (2012).
both parties, while maintaining their above-stated positions, agreed in a stipulation filed December
29, 2015, 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
(as attached hereto) 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 $195,793.89, which amount represents compensation for first
year life care expenses ($15,077.88) and pain and suffering ($180,716.02), in the
form of a check payable to Petitioner as guardian(s)/conservator(s) of the estate
of B.K. for the benefit of B.K. No payments shall be made until Petitioner
provides respondent with documentation establishing that she has been
appointed as the guardian/conservator of B.K.’s estate;
b. A lump sum of $1,870.00, which amount represents compensation for past
unreimbursable expenses, in the form of a check payable to Petitioner, Katherine
M. Kelley;
c. An amount sufficient to purchase the annuity contract described in paragraph 10
of the Stipulation, paid to the life insurance company from which the annuity
will be purchased.
These amounts represent compensation for all damages that would be available under 42 U.S.C. §
300aa-15(a).
Stipulation ¶ 8.
I approve a Vaccine Program award in the requested amounts set forth above to be made
to Petitioner. 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
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their
right to seek review.
2