Walker v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 10, 2020
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ELMIA WALKER * UNPUBLISHED
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Petitioner, * No. 18-366V
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v. * Special Master Gowen
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SECRETARY OF HEALTH * Stipulation for Award;
AND HUMAN SERVICES, * Hepatitis B; lichen planus.
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Respondent. *
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Carol L. Gallagher, Carol C. Gallagher, Somers Point, N.J., for petitioner.
Mary E. Holmes, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION FOR STIPULATION1
On March 8, 2018, Elmia Walker (“petitioner”), filed a petition for compensation under
the National Vaccine Injury Program. 2 Petition at Preamble (ECF No. 1). Petitioner received
Hepatitis B vaccinations on September 9, 2016, October 31, 2016 and March 20, 2017. Petition
at ¶ 6- 8; Stipulation at ¶ 2 (ECF No. 55). Petitioner alleges that as a result of receiving the
Hepatitis B vaccines, she suffered lichen planus. Stipulation at ¶ 4.
On August 7, 2020, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Respondent denies that the hepatitis B vaccines are
the cause of petitioner’s alleged injuries, or any other injury or her current condition. Id. at ¶ 6.
Nevertheless, maintaining their respective positions, the parties now agree that the issues
between them shall be settled and that a decision should be entered awarding the compensation
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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 am required 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. This means the
opinion will be available to anyone with access to the Internet. 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
decision.” 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.
to the petitioner according to the terms of the stipulation attached hereto as Appendix A. Id. at ¶
7.
The stipulation provides:
1) A lump sum of $30,000.00, 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).
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 SHALL ENTER JUDGMENT in
accordance with the terms of the parties’ stipulation. 3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
ELMIA WALKER,
Petitioner, No. 18-366V
Special Master Gowen
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. 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 the Hepatitis B vaccine
(“Hep B”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42
C.F.R. § 100.3(a).
2. Petitioner received Hep B vaccines on September 19, 2016, October 31, 2016 and
March 20, 2017.
3. The vaccines were administered within the United States.
4. Petitioner alleges that she suffered from lichen planus as a result of receiving the Hep
B vaccines.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of her condition.
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6. Respondent denies that the Hep B vaccines caused petitioner to develop lichen planus,
any other injury, and/or her 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 payment:
A lump sum of $30,000.00 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 her 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.
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11. Payment made pursuant to paragraph 8 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 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 Hep B vaccinations administered on September 19,
2016, October 31, 2016 and March 20, 2017, as alleged by petitioner in a petition for vaccine
compensation filed on March 8, 2018, in the United States Court of Federal Claims as petition
No. 18-366V.
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.
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15. 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.
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 Hep B vaccines caused petitioner to suffer
lichen planus, or any other injury or condition.
18. 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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