Williams v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-24V
(not to be published)
*****************************
CAROL WILLIAMS, *
*
Petitioner, * Filed: February 21, 2020
*
v. * Decision by Stipulation; Damages;
* Influenza (“Flu”) Vaccine;
* Guillain-Barre Syndrome (“GBS”).
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*****************************
John R. Howie, Jr., Howie Law, PC, Dallas, Tx., for Petitioner.
Glenn A. MacLeod, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On February 13, 2017, Petitioner Carol Williams (“Petitioner”) filed a petition seeking
compensation under the National Vaccine Injury Compensation Program (“the Vaccine
Program”).2 Pet., ECF No. 1. Petitioner alleges that she developed Guillain-Barre Syndrome
(“GBS”) as a result of receiving an influenza (“flu”) vaccination on January 17, 2013. See
Stipulation ¶ 2, 4, dated February 21, 2020 (ECF No. 69); see also Petition.
Respondent denies “that the flu vaccine caused Petitioner to suffer GBS, or any other
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the ruling will be available to anyone with access to the internet. As provided
by 42 U.S.C. § 300aa-12(d)(4)(B), 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 Decision in its present form will be available. 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, 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.
injury, and further denies that her current disabilities are a sequela of a vaccine-related injury.”
See Stipulation ¶ 6. Nonetheless, both parties, while maintaining their above-stated positions,
agreed in a stipulation filed February 21, 2020 that the issues before them can be settled and that
a decision should be entered awarding Petitioner compensation. Id. at ¶ 7.
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 parties have stipulated that petitioner shall receive the following compensation:
1. Lump Sum
A lump sum of $230,255.30, which represents compensation for first year life care
expenses ($35,255.30), pain and suffering ($165,000.00), and past unreimbursable expenses
($30,000), In the form of a check payable to petitioner. Stip. ¶ 8.
2. Annuity
The remainder of damages shall be paid in the form of an annuity contract, which shall be
purchased as soon as practicable after entry of judgment. Accordingly, pursuant to 42 U.S.C. §
300aa-15(f)(4), I order respondent to purchase, and take ownership of, an annuity contract,3 as
described below:
Each Life Insurance Company must meet the following criteria:
1. Have a minimum of $250,000,000 of capital and surplus, exclusive of any mandatory
security valuation reserve; and
2. have one of the following ratings from two of the following rating organizations:
a) A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;
b) Moody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, 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.
The Secretary of Health and Human Services shall purchase an annuity contract from the Life
Insurance Company for the benefit of Petitioner, pursuant to which the Life Insurance Company
will agree to make payments periodically to Petitioner as described in paragraph 10 of the attached
Stipulation.
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To satisfy the conditions set forth herein, in respondent’s discretion, respondent may purchase one or
more annuity contracts from one or more life insurance companies.
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I approve a Vaccine Program award in the requested amount 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.4
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice
renouncing their right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
CAROL WILLIAMS, )
)
Petitioner, )
V. )
) No. 16-24V
SECRETARY OF HEALTH ) Special Master
AND HUMAN SERVICES ) Katherine E. Oler
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
l . Carol Williams, 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 vaccine is contained in the Vaccine Injury Table (the
"Table"), 42 C.F.R. § 100.3 (a).
2. Petitioner received her flu immunization on or about January 17, 2013.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered Ouillain-Barre Syndrome ("OBS") as a result of
receiving the flu vaccine, and further alleges that she experienced the residual effects of this
condition for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on her behalf as a result of her condition.
6. Respondent denies that the flu vaccine caused petitioner to suffer OBS, or any other
injury, and further denies that her current disabilities are a sequela of a vaccine-related 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-2l(a)(l), the Secretary of Health and Human Services will issue ·
the following vaccine compensation payments:
a. A lump sum of$230,255.30, which amount represents compensation for first year life
care expenses ($35,255.30), pain and suffering ($165,000.00), and past unreimbursable
expenses ($30,000.00), in the form of a check payable to petitioner; and
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").
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: A++, A+, A+g, A+p, A+r, or A+s;
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.
I 0. The Secretary of Health and Human Services agrees to purchase an annuity contract
from the Life Insurance Company for the benefit of petitioner, Carol Williams, pursuant to which
the Life Insurance Company will agree to make payments periodically to petitioner as follows:
a. For future unreimbursable Medicare Part B Deductible expenses, beginning on the
first anniversary of the date ofjudgment, an annual amount of$185.00 to be paid for the
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remainder of petitioner's life, increasing at the rate of five percent (5%), compounded
annually from the date of judgment.
b. For future unreimbursable Case Management and YMCA expenses, on the first
anniversary of the date of judgment, a lump sum of $1,500.00, increasing at the rate of
four percent (4%), compounded annually from the date ofj udgment.
c. For future unreimbursable Physical Therapy and PM&R Mileage, Scooter
Maintenance, Adaptive Device, Shoe Allowance, Lift Maintenance, and Adult Diaper
expenses, beginning on the first anniversary of the date ofjudgment, an annual amount of
$647 .56 to be paid up to the third anniversary of the date of judgment. Thereafter,
beginning on the third anniversary of the date ofjudgment, an annual amount of $687.56
to be paid for the remainder of petitioner's life, all amounts increasing at the rate of four
percent (4%), compounded annually from the date ofjudgment.
d. For future unreimbursable Personal Care Attendant expenses, beginning on the
anniversary of the date of judgment in year 2025, an annual amount of$45,260.00 to be
paid for the remainder of petitioner's life, increasing at the rate of four percent ( 4%),
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 IO 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
she, Carol Williams, 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 petitioner'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
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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
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 ofjudgment 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-2l(a)(l), 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 her 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-
l 5(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa-15(g) and (h).
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16. In return for the payments described in paragraphs 8 and 12, petitioner, in her
individual capacity, and on behalf of her 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. § 300 aa-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 vaccination administered on or about January 17,
2013, as alleged by petitioner in a petition for vaccine compensation filed on or about January 6,
2016, in the United States Court of Federal Claims as petition No. 16-24V.
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. 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.
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
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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.
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 flu vaccine caused petitioner's alleged OBS, or any
other injury, or any of her current disabilities.
22. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
I
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Respectfully submitted,
PETITIONER:
Q~- ~
CAROL WILLIAMS
-
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER:
~ ~YGENERAL
.,,,.---: ____
RHO
LAW,P.C.
,JR. ~ E. REEVES
Deputy Director
2608 }::libemia Street Torts Branch
Dallas, TX 75204 Civil Division
Tel: (214) 622-6340 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OFTHESECRETARYOFHEALffl RESPONDENT:
AND HUMAN SERVICES:
t!_aJ Se~tf>__'1- _ ~//Jf/a, .
TAMARA OVERBY GLENN A. JtoiEPD
Acting Director, Division of Injury Senior Trial Counsel
Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 11 C-26 Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-4122
Dated: _ _ I
J_ 2._l ?.,!)___ _
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