Robinson v. Secretary of Health and Human Services

Sn the Gnited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
No. 19-725V
Filed: May 25, 2022
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SANDERS ROBINSON, * UNPUBLISHED
*
Petitioner, * Decision on Joint Stipulation;
*s Guillain-Barré Syndrome
V. * (“GBS”); Tetanus-diptheria-
* acellular pertussis (“Tdap’”)
SECRETARY OF HEALTH * Vaccine.
AND HUMAN SERVICES, **
*
Respondent. *
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Diana L. Stadelnikas, Esq., Maglio Christopher & Toale, Sarasota, FL, for petitioner.
Mark K. Hellie, Esg., US Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION!
Roth, Special Master:
On May 16, 2019, Sanders Robinson [“Mr. Robinson” or “petitioner’] filed a petition for
compensation under the National Vaccine Injury Compensation Program.” Petitioner alleges that
he developed Guillain-Barré Syndrome (“GBS”) after receiving a tetanus-diptheria-acellular
pertussis (“Tdap”) vaccine on November 28, 2016. Stipulation, filed May 25, 2022, at { 1-4.
Respondent denies that the flu vaccine caused petitioner to suffer from GBS, CIDP, any other
injury, or his current condition. Stipulation at { 6.
| Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen 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. /d.
? National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “$” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Nevertheless, the parties have agreed to settle the case. On May 25, 2022, the parties filed
a joint stipulation agreeing to settle this case and describing the settlement terms.
Respondent agrees to issue the following payment:
a) A lump sum of $147,512.94, which represents compensation for first-year life care
expenses ($46,821.49), pain and suffering ($100,000.00), and past unreimbursable
expenses ($691.45) in the form of a check payable to petitioner;
b) An amount sufficient to purchase the annuity contract described in paragraph 10
below, paid to the life insurance company from which the annuity will be purchased
(the “Life Insurance Company’).
These amounts represent compensation for all damages that would be available under
§300aa-15(a).
I adopt the parties’ stipulation attached hereto, and award compensation in the amount and
on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance
with this decision.?
IT ISSO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
> Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
2
DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5
IN TH E UNITED STATES COURT OF FEDRRA L CLAIMS
OFFICE OF SPECIAL MASTR S
)
SANDERS ROBINSON, )
)
Petitioner, )
Vv. )
) No. 19-725V
SECRETARY OF HEALTH ) Special Master Roth
AND HUMAN SERVICES, ) ECF
)
Respondent. )
_)
STIPULATION
The parties hereby stipulate to the following matters:
1. Sanders Robinson, 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 a tetanus, diphtheria, and acellular pertussis (““Tdap”) vaccine, which vaccine is contained in
the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received his Tdap vaccination on November 28, 2016.
3. The vaccination was administered within the United States.
4. Petitioner alleges that he suffered from Guillain Barré Syndrome (“GBS”) as a result
of receiving the Tdap vaccine, and that he experienced the residual effects of this injury for more
than six months.
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.
DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5
6. Respondent denies that the Tdap vaccine caused petitioner to suffer from GBS, CIDP,
or 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 payments:
a. A lump sum of $147,512.94, which amount represents compensation for first year life
care expenses ($46,821.49), pain and suffering ($100,000.00), and past unreimbursable
expenses ($691.45) in the form of a check payable to petitioner;
b. An amount sufficient to purchase the annuity contract described in paragraph 10
below, paid to the life insurance company from which the annuity will be purchased (the
“Life Insurance Company”).
These amounts represent compensation for all damages that would be available under 42
U.S.C. §300aa-15(a).
9. The Life Insurance Company must have a minimum of $250,000,000 capital and
surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company
must have one of the following ratings from two of the following rating organizations:
a. A.M. Best Company: At++, A+, At+g, Atp, Atr, or Ats;
b. Moody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aal, or Aaa;
c. Standard and Poor’s Corporation Insurer Claims-Paying Ability Rating: AA-,
AA, AA+, or AAA;
d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating:
AA-, AA, AA+, or AAA.
DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5
10. The Secretary of Health and Human Services agrees to purchase an annuity contract
from the Life Insurance Company for the benefit of petitioner, Sanders Robinson, pursuant to
which the Life Insurance Company will agree to make payments periodically to petitioner as
follows for the following life care items available under 42 U.S.C. §300aa-15(a).
a. For future unreimbursable Medicare Advantage Drug Deductible, Medicare Part B
Premium, Primary Care Physician, Pain Management and Rehabilitation, Neurologist,
Urologist, and Neuro-ophthalmologist expenses, on the first anniversary of the date of
judgment, a lump sum of $2,527.60, increasing at the rate of three percent (3%),
compounded annually from the date of judgment.
b. For future unreimbursable Medicare Part B Deductible expenses, beginning on the
anniversary of the date of judgment in year 2024, an annual amount of $233.00 to be paid
for the remainder of petitioner’s life, increasing at the rate of three percent (3%),
compounded annually from the date of judgment.
c. For future unreimbursable Medicare Supplement and Medicare Part D expenses,
beginning on the anniversary of the date of judgment in year 2024, an annual amount of
$2,479.68 to be paid for the remainder of petitioner’s life, increasing at the rate of three
percent (3%), compounded annually from the date of judgment.
d. For future unreimbursable Podiatrist expenses, beginning on the first anniversary of
the date of judgment, an annual amount of $524.00 to be paid for the remainder of
petitioner’s life, increasing at the rate of three percent (3%), compounded annually from
the date of judgment.
e. For future unreimbursable Physical Therapy Evaluation and Physical Therapy
expenses, on the first anniversary of the date of judgment, a lump sum of $520.00,
increasing at the rate of three percent (3%), compounded annually from the date of
judgment.
f. For future unreimbursable Bed Cane, Gait Belt, Transfer Board, Raised Toilet Seat,
Shower Chair, Hand Held Shower, Reacher, TED Hose, and Dressing Aid expenses, on
the first anniversary of the date of judgment, a lump sum of $144.18. Thereafter,
beginning on the anniversary of the date of judgment in year 2024, an annual amount of
$110.85 to be paid for the remainder of petitioner’s life, all amounts increasing at the rate
of three percent (3%), compounded annually from the date of judgment.
g. For future unreimbursable Hoyer Sling expenses, beginning on the anniversary of the
date of judgment in year 2030, an annual amount of $116.00 to be paid for the remainder
of petitioner’s life, increasing at the rate of three percent (3%), compounded annually
from the date of judgment.
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h. For future unreimbursable Scooter, Scooter Battery, Scooter Maintenance, and
Scooter Lift expenses, beginning on the first anniversary of the date of judgment, an
annual amount of $730.99 to be paid for the remainder of petitioner’s life, increasing at
the rate of three percent (3%), compounded annually from the date of judgment.
i. For future unreimbursable Ancillary Services, Life Alert, and Home Care expenses,
beginning on the first anniversary of the date of judgment, an annual amount of
$17,353.90 to be paid up to the anniversary of the date of judgment in year 2027.
Then, beginning on the anniversary of the date of judgment in year 2027, an annual
amount of $24,891.15 to be paid up to the anniversary of the date of judgment in year
2029. Then, beginning on the anniversary of the date of judgment in year 2029, an
annual amount of $23,151.15 to be paid up to the anniversary of the date of judgment in
year 2032. Thereafter, beginning on the anniversary of the date of judgment in year
2032, an annual amount of $30,688.40 to be paid for the remainder of petitioner’s life, all
amounts increasing at the rate of three percent (3%), compounded annually from the date
of judgment.
At the sole discretion of the Secretary of Health and Human Services, the periodic payments set
forth in paragraph 10 above may be provided to petitioner in monthly, quarterly, annual or other
installments. The “annual amounts” set forth above describe only the total yearly sum to be paid
to petitioner and do not require that the payment be made in one annual installment. Petitioner
will continue to receive the annuity payments from the Life Insurance Company only so long as
he, Sanders Robinson, is alive at the time that a particular payment is due. Written notice shall
be provided to the Secretary of Health and Human Services and the Life Insurance Company
within twenty (20) days of Sanders Robinson’s death.
11. The annuity contract will be owned solely and exclusively by the Secretary of Health
and Human Services and will be purchased as soon as practicable following the entry of a
judgment in conformity with this Stipulation. The parties stipulate and agree that the Secretary
of Health and Human Services and the United States of America are not responsible for the
payment of any sums other than the amounts set forth in paragraph 8 herein and the amounts
awarded pursuant to paragraph 12 herein, and that they do not guarantee or insure any of the
future annuity payments. Upon the purchase of the annuity contract, the Secretary of Health and
Case 1:19-vv-00725-UNJ Document 43 Filed 05/25/22 Page 5 of 8
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Human Services and the United States of America are released from any and all obligations with
respect to future annuity payments.
12. 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.
13. 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.
14. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 12 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i),
subject to the availability of sufficient statutory funds.
15. 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 either immediately or as part of the annuity contract, will be used
solely for petitioner’s benefit 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).
16. In return for the payments described in paragraphs 8 and 12, 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
DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5
the Secretary of Health and Human Services from any and al] 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 Tdap vaccination administered on
November 28, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or
about May 16, 2019, in the United States Court of Federal Claims as petition No. 19-725V.
17. 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.
18. 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.
19. 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 12 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.
DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5
20. Petitioner hereby authorizes respondent to disclose documents filed by petitioner in
this case consistent with the Privacy Act and the routine uses described in the National Vaccine
Injury Compensation Program System of Records, No. 09-15-0056.
21. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the Tdap vaccine caused petitioner’s alleged GBS,
CIDP, or any other injury or his current condition.
22. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
DocuSign Envelope ID: 7AB92469-1088-4E07-92E0-685996CE5CB5
Respectfully submitted,
PETITIONER:
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SANDERS ROBINSON
ATTORNEY OF RECORD FOR
DIANA L.STADELNIKAS
Counsel for Petitioner
Maglio Christopher & Toale, PA
1605 Main Street, Suite 710
Sarasota, FL 34236
dstadelnikas@mctlaw.com
(888) 952-5242
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
. Digitally signed by George R.
George R. Grimes -S14 Grimes -S14
Date: 2022.05.12 17:44:33 -04'00'
CDR GEORGE REED GRIMES, MD, MPH
Director, Division of Injury
Compensation Programs
Health Systems Bureau
Health Resources and
Services Administration
U.S. Department of Health and
Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
Dated: Mar CS 2022
J
AUTHORIED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
Hodet Lider yn
HEATHER L,. PEARLMAN
Deputy Director
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTONEY OF RECORD FOR
RESPONDENT:
MARK K. HELLIE
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
mark.hellie@usdoj.gov
(202) 616-4208