Worthy v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1104V
UNPUBLISHED
LOUIE WORTHY, Chief Special Master Corcoran
Petitioner, Filed: June 10, 2020
v.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages; Influenza
HUMAN SERVICES, (Flu) Vaccine; Guillain-Barre
Syndrome (GBS)
Respondent.
John P. Valente, III, The Valente Law Group, Crofton, MD, for petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
On July 30, 2018, Louie Worthy filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that he suffered Guillain-Barré Syndrome (“GBS”) and
paralysis caused-in-fact by the influenza vaccine he received on September 9, 2016.
Petition at 1, ¶¶ 2, 8; Stipulation, filed June 10, 2020, at ¶¶ 1-2, 4. Petitioner further
alleges he received the influenza vaccine in the United States, that he continues to
suffer the residual effects of his GBS and paralysis more than six months after
vaccination, and that neither he nor any other party has filed a civil action or received
compensation for his injuries alleged as vaccine caused. Petition at ¶¶ 2, 7, 9;
Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused [P]etitioner to
suffer from GBS or any other injury or his current condition.” Stipulation at ¶ 6.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the decision will be available to anyone with access
to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2
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, on June 10, 2020, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. I find the stipulation
reasonable and adopt it as my decision awarding damages, on the terms set forth
therein.
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
A. A lump sum in the amount of $446,350.41, representing compensation in
the amounts of $159,204.31 for his first-year life expenses, $200,00.00
for his pain and suffering, and $87,146.10 for his actual unreimburseable
expenses; and
B. A lump sum sufficient to purchase the annuity contract described in
paragraph 10 of the Stipulation.
Stipulation at ¶ 8. This amount represents compensation for all items of damages that
would be available under § 15(a). Id.
I approve the requested amount for Petitioner’s compensation. In the absence of
a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed
to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
LOUIE WORTHY, )
)
Petitioner, )
V. )
) No. 18-l 104V
SECRETARY OF HEAL TH ) Chief Special Master Corcoran
AND HUMAN SERVICES, ) ECF
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
1. Louie Worthy, 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 his flu ·vaccination on September 9, 2016.
3. The vaccination was administered within the United States.
4. Petitioner alleges that he suffered from Guillain-Barre syndrome ("OBS") as a result
of receiving the flu 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.
6. Respondent denies that the flu vaccine caused petitioner to suffer from GBS 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 te1ms of this Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 U.S.f"'. § 3COaa-2l(a)(l), the .Secretary of Health and Human Services will issue
the following vaccine compensation payments:
a. A lump sum of $446,350.41 which amount represents compensation for first year life
care expenses ($159,204.31), pain and suffering ($200,000.00), and past unreimbursable
expenses ($87,146.10) 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: A++, A+, A+g, A+p, A+r, or A+s;
b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa 1, 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.
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10. The Secretary of Health and Human Services agrees to purchase an annuity contract
from the Life Insurance Company for the benefit of petitioner, Louie Worthy, 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-l 5(a).
a. For future unreimbursable Attendant Care expenses, beginning on the first anniversary
of the date of judgment, an annual amount of $82,485.00 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.
b. For future unreimbursable Rcspik Care expenses, beginning on the first anniversary
of the date of judgment, an annual amount of $4,326.00 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 Elevating Adaptation for Wheelchair, Shower Chair, Night
Splints for Legs, Bilateral Hc111d Splint, Theraband, Arm Skate, Food Guard Plate, and
Reusable Drinking Straw expense·s, on the first anniversary of the date of judgment, a
lump sum of$728.63. Then, on the anniversary of the date of judgment in year 2022, a
lump sum of$875.07. Thereafter, beginning on the anniversary of the date of judgment
in year 2023, an annual amount of $757.92 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.
d. For future unreimbursable Wheelchair Accessible Van Adaptive Equipment expenses,
on the anniversary of the date of judgment in year 2028, a lump sum of $34,390.00,
increasing at the rate of three percent (3%), compounded annually from the date of
judgment.
e. For future unreimbursable Incontinence Pad, Washable Bed Pad, Disposable Glovt,
and Wipe expenses, beginning on the first anniversary of the date of judgment, an annual
amount of $454.40 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.
f. For future unreimbursable Dulcolax, Miralax, Cortisone Cream, Vitamin D3, Stool
Softener, Tylenol, and Calcium expenses, beginning on the first anniversary of the date of
judgment, an annual amount of $290.46 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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At the sole discretion of the Secretary of Health and Human Services, the periodic payments set
fo11h 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
he, Louie Wo11hy, 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
twen1y (20) days of Louie Worthy ' 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
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 r.f~er 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-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.
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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-l 5(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),
subjtct 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-l 5(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
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 hav~ 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-l 0 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 9, 2016, as
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alleged by petitioner in a petition for vaccine compensation filed on or about July 30, 2018, in
the United States Court of Federal Claims as petition No. 18-1104V.
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 tem1s
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 discrdion of either party.
19. This Stipulation expresses a foll 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.
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 flu vaccine caused petitioner's alleged G BS or
any other injury or his current condition.
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22. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
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4105359285 P. 2/ 2
Miy. 29. 2020 02: 34 PM worthy
Resp~ctfully submitted,
PETITIONER:
INE E. REEVES
Deputy Directo1·
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Bcnjmnin Franklin Station
Washington, DC 20044-0146
AUTHORIZED Rm'UESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES: flvn.J_~ l__ /Gu)_)-'
--·-------------
TAMARA OVERBY
~ ~ ~--
Ronald~\ E. Kosh
Acting Director, Division of Injury Trial Allomcy
Cl1mpcnsalion Programs Tol'tsBranch
l-leulthcnrc Systems Burenu Civil Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lnne Benjtlmin Franklin Station
Purklnwn Building, Mail Stop 11 C-26 Washington~ DC 20044~0146
Rockville, MD 20857 Tel: (202) 616-4476
Dated: ~ "1/.)1)_ _~
8