Driggers v. Secretary of Health and Human Services

In the Gnited States Court of Federal Clans
OFFICE OF SPECIAL MASTERS
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MATTHEW DRIGGERS, **
* No. 19-1436V
Petitioner, ** Special Master Christian J. Moran
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V. ** Filed: October 14, 2021
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SECRETARY OF HEALTH ** Stipulation; influenza (“‘flu’’) vaccine;
AND HUMAN SERVICES, ** anaphylaxis; chronic urticaria.
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Respondent. **
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Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner;
Amanda Pasciuto, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION'
On October 12, 2021, the parties filed a joint stipulation concerning the
petition for compensation filed by Matthew Driggers on September 18, 2019.
Petitioner alleged that the influenza (“flu”) vaccine he received on September 20,
2016, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R.
§100.3(a), caused him to suffer from anaphylaxis and chronic urticaria. Petitioner
represents that there has been no prior award or settlement of a civil action for
damages on his behalf as a result of his condition.
Respondent denies that the vaccine either caused petitioner to suffer from
anaphylaxis or chronic urticaria, or any other injury or his current condition.
' 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 $35,000.00 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).
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment according to this decision and the attached
stipulation.”
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
* 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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
MATTHEW DRIGGERS, )
)
Petitioner, )
) No. 19-1436V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Matthew Driggers, 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 (‘flu’) vaccine, which is a vaccine contained in the Vaccine Injury Table (the
“Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received the flu vaccine on September 20, 2016.
3. The vaccination was administered within the United States.
4, Petitioner alleges that he suffered from anaphylaxis and chronic urticaria as a result of
receiving the flu vaccine.
5, Petitioner represents that there has been no prior award or settlement of a civil action
for damages on his behalf as a result of his condition.
6. Respondent denies that the flu vaccine caused petitioner to suffer from anaphylaxis
and chronic urticaria, or any other injury.
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. A lump sum of $35,000.00 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 compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be
expected to be made under any 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 by entities that provide health services on a pre-paid basis.
11, Payment made pursuant to paragraph 8 of this Stipulation 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 unreimbursed 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 September 20, 2016,
as alleged by petitioner in a petition for vaccine compensation filed on or about September 18,
2019, in the United States Court of Federal Claims as petition No. 19-1436V.
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. Ifthe 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 vaccine caused petitioner to develop
anaphylaxis and chronic urticaria, or any other injury or his current condition.
18. All rights and obligations of petitioner hereunder shal! apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully submitted,
PETITIONER: i
Medd RS
ATTORNEY RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
—edstun ty. Pea tM
HEATHER L. PEARLMAN
Counsel for Petitioner Deputy Director
Jeffrey S. Pop & Associates Torts Branch, Civil Division
9150 Wilshire Blvd., Suite 241 U.S. Department of Justice
Beverly Hills, California 90212-3429 P.O, Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
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Dale Mishlin, Di\Se, APU, for yay Neddthun Le tie ~
TAMARA OVERBY AMANDA PASCIUTO
Acting Director, Division of Injury Trial Attomey
Compensation Programs Torts Branch
Health Systems Bureau Civil Division
Health Resources and Services U.S. Department of Justice
Administration P.O. Box 146
U.S. Department of Health Benjamin Franklin Station
and Human Services Washington, DC 20044-0146
5600 Fishers Lane, 08N146B Tel: (202) 616-4847
Rockville, MD 20857 Email: amanda.y.pasciuto@usdoj.gov
Dated: \slizteory