Grivna v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: June 26, 2020
* * * * * * * * * * * * *
STEPHEN GRIVNA, as * UNPUBLISHED
Father and Natural Guardian for M.G., *
* No. 15-1286V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Stipulation; Influenza (Flu);
AND HUMAN SERVICES, * Acute Disseminated Encephalo-
* myelitis (ADEM).
Respondent. *
* * * * * * * * * * * * *
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Lara A. Englund, United States Department of Justice, Washington, DC, for respondent.
DECISION ON STIPULATION1
On October 29, 2015, Stephen Grivna (“petitioner”), on behalf of his daughter, M.G.,
filed a petition for compensation under the National Vaccine Injury Compensation Program2 (the
“Vaccine Program”). Petition (ECF No. 1).3 The petition seeks compensation for injuries
allegedly related to M.G.’s receipt of the influenza (“flu”) vaccine, which vaccine is contained in
the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The Court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion
is posted on the Court’s website, each party has 14 days to file a motion requesting 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). An objecting party must provide the Court with a proposed
redacted version of the opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will
be posted on the Court’s website without any changes. 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. §§ 300aa-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
3
The petition was originally filed by both Carla and Stephen Grivna as named petitioners; however, petitioners
moved to amend the caption to remove Carla Grivna as a petitioner, and the caption was amended by my order dated
June 10, 2020, leaving Stephen Grivna as the sole petitioner.
M.G. received the flu immunization on November 20, 2013. The vaccination was
administered within the United States. Petitioner alleges that M.G. suffered from injuries,
including acute disseminated encephalomyelitis (“ADEM”) as a result of receiving the vaccine.
On June 24, 2020, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner on behalf of M.G. Stipulation (ECF No. 112).
Respondent denies that the vaccine caused M.G. to suffer from ADEM, or any other injury or her
current condition. Id. at ¶ 6. Maintaining their respective positions, the parties nevertheless now
agree that the issues between them shall be settled and that a decision should be entered
awarding compensation according to the terms of the stipulation attached hereto as Appendix A.
Id. at ¶ 7.
The stipulation awards:
a. A lump sum of $852,866.12, which amount represents compensation for first
year life care expenses ($309,016.12), and trust seed funds ($543,850.00), in the
form of a check payable to Regions Bank, as trustee of the grantor reversionary
trust established for the benefit of M.G.;
b. A lump sum of $925,000.00, which amount represents compensation for lost
future earnings and pain and suffering, in the form of a check payable to
petitioner as guardian/ conservator of M.G. for the benefit of M.G. No
payments shall be made until petitioner provides respondent with
documentation establishing that he has been appointed as guardian/ conservator
of M.G.’s estate;
c. A lump sum of $73,479.93, which amount represents reimbursement of a lien for
services rendered on behalf of M.G., in the form of a check payable jointly to
petitioner and Agency for Health Care Administration, and mailed to:
Florida Medicaid Casualty Recovery Program
P.O. Box 12188
Tallahassee, FL 32317-2188
HMS Case Number: 115027
Petitioner agrees to endorse this check to the Agency for Health Care
Administration.
d. A lump sum of $50,121.66, which amount represents reimbursement of a lien for
services rendered to M.G., in the form of a check payable jointly to petitioner
and Department of Health, Children’s Medical Services, and mailed to:
Department of Health, Children’s Medical Services
2390 Phillips Road
Tallahassee, FL 32308
ATTN: Bonnie Dorman
2
CMS File No.: 20220217MG01
Petitioner agrees to endorse this check to the Department of Health, Children’s
Medical Services.
e. An amount sufficient to purchase the annuity contract described in paragraph
10 of the stipulation (attached hereto as Appendix A), paid to the life insurance
company from which the annuity will be purchased (the “Life Insurance
Company”).
This amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a). I adopt the stipulation as the decision of the Court and hereby award
compensation in the amount and on the terms set forth therein. Accordingly, the Clerk of Court
SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.4
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
4
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
3