Harper v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
RANDY O. HARPER, *
* No. 16-1215V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: November 30, 2017
*
SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine;
AND HUMAN SERVICES, * Guillain-Barré syndrome (“GBS”);
* chronic inflammatory demyelinating
* polyneuropathy (“CIDP”)
Respondent. *
******************** *
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC for
Petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION1
On November 30, 2017, the parties filed a joint stipulation concerning the
petition for compensation filed by Randy O. Harper on September 28, 2016.
Petitioner alleged that the influenza vaccine, which is contained in the Vaccine
Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on October
16, 2014, caused him to suffer Guillain-Barré syndrome and chronic inflammatory
demyelinating polyneuropathy. Petitioner further alleges that he suffered the
residual effects of these injuries for more than six months. 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.
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
Respondent denies that the vaccine caused petitioner’s alleged injuries or
any other injury, and denies that petitioner's current disabilities are the result of a
vaccine-related injury.
Nevertheless, the parties agree to the joint stipulation, attached hereto. The
undersigned finds said stipulation reasonable and adopts it as the decision of the
Court in awarding damages, on the terms set forth therein.
Damages awarded in that stipulation include:
a. A lump sum of $1,313,885.49, which amount represents
compensation for first year life care expenses ($114,180.01), lost
earnings ($937,982.35), pain and suffering ($225,000.00), and past
unreimbursable expenses ($36,723.13), in the form of a check
payable to petitioner; and
b. An amount sufficient to purchase the annuity contract described in
paragraph 10 of the stipulation, paid to the life insurance company
from which the annuity will be purchased.
These amounts represents compensation for all damages that would
be available under 42 U.S.C. § 300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 16-1215V according to this decision
and the attached stipulation.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
RANDY 0 . HARPER, )
)
Petitioner, )
v. )
) No. 16-1215V
SECRETARY OF HEALTH ) Special Master Moran
AND HUMAN SERVICES )
)
Respondent. )
STIPULATIO N
The parties hereby stipulate to the following matters:
1. Randy 0 . Harper, 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 immunization on October 16, 2014.
3. The vaccination was administered within the United States.
4. Petitioner alleges that he suffered from Guillain-Barre syndrome ("GBS") and
Chronic Inflammatory Demyclinating Polyneuropathy ("CIDP") as a result ofreceiving the flu
vaccine, and further alleges that he experienced the residual effects of this condition for more
than six months.
S. 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, 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 tenns 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 ofSI,313,885.49, which amount represents compensation for fust year
life care expenses ($114,180.01), lost earnings ($937,982.35), pain and suffering
($225,000.00), and past unreimbursable expenses ($36,723.13), 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.
10. The Secretary of Health and Human Services agrees to purchase an annuity contract
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from the Life Insurance Company for the benefit of petitioner, Randy 0 . Harper, pursuant to
which the Life Insurance Company will agree to make payments periodically to petitioner as
follows :
a. For future unreimbursable AETNA Maximum out of Pocket expenses, beginning on
the first anniversary of the date of judgment, an annual amount of$7,150.00 to be paid up
to the anniversary of the date of judgment in year 2025, increasing at the rate of five
percent (5%), compounded annually from the date of judgment.
b. For future unreimbursable AETNA Premium and Medicare Part B expenses,
beginning on the first anniversary of the date of judgment, an annual amount of
$7,182.00 to be paid up to the anniversary of the date of judgment in year 2025,
increasing at the rate of five percent (5%), compounded annually from the date of
judgment.
c. For future unreimbursable Medicare Supplement Plan C and Medicare Part D
expenses, beginning on the anniversary of the date ofjudgment in year 2025, an annual
amount of $3,733.15 to be paid for the remainder of petitioner's life, increasing at the rate
of five percent (5%), compounded annually from the date ofjudgment.
d. For future unreimbursable Alpha Lipoic Acid, Vitamin B, and COQ-10 expenses,
beginning on the first anniversary of the date of judgment, an annual amount of $291.15
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.
e. For future unreimbursable Massage Therapy expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $780.00 to be paid up to the
anniversary of the date of judgment in year 2020. Thereafter, beginning on the
anniversary of the date of judgment in year 2020, an annual amount of $260.00 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 of judgment.
f. For future unreimbursable Gel Seat, Universal Cuff, Compression Socks, and Adaptive
Clothing expenses, beginning on the first anniversary of the date ofjudgment, an annual
amount of $350.00 to be paid up to the second anniversary of the date ofjudgment.
Thereafter, beginning on the second anniversary of the date ofjudgment, an annual
amount of $300.00 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.
g. For future unreimbursable Adjustable Bed, Bed Cradle/Foot Support, Lift Chair,
Toilet Seat Frame, Pressure Relief Wedge, Rolling Shower Chair, and Fishing Pole
Holder expenses, on the anniversary of the date of judgment in year 2022, a lump sum of
$455.62. Then, on the anniversary of the date of judgment in year 2027, a lump sum of
$1,955.87. Thereafter, beginning on the anniversary of the date of judgment in year
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2028, an annual amount of $241.15 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.
h. For future unreimbursable Home Health Aide expenses, beginning on the first
anniversary of the date ofjudgment, an annual amount of $43,800.00 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.
i. For future unreimbursable Modified Van expenses, on the anniversary of the date of
judgment in year 2027, a lump sum of $50,839.20. Thereafter, beginning on the
anniversary of the date of judgment in year 2028, an annual amount of $5,083.92 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 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, Randy 0 . Harper, 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 Randy 0. Harper'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
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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 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
the Secretary of Health and Human Services from any and all actions or causes of action
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(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 flu vaccination administered on October 16, 2014, as
alleged by petitioner in a petition for vaccine compensation filed on or about September 28,
2016, in the United States Court of Federal Claims as petition No. 16-1215V.
17. If petitioner should die prior to entry ofjudgment, 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
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.
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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 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
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Respectfully submitted,
-
AUTHOIU ZED REPRESE NTATIVE
OF THE ATTORN EY GENERA L:
~~
ARINE E. REEVES
Deputy Director
Torts Brnnch
Civil Division
U.S. Department of Justi ce
P.O. Box 146
Benjamin franklin Stat ion
Washington, DC 20044-0146
ATTORNEY OF RRCO RD FOR
RESPOND ENT:
AIR, .D. DARRYL R. WISHARD
Director, Division oflnjury Senior Trial Attorney
Compensation Programs Torts Branch
Hcnlthcnre Systems Burel\u Civi l Division
U.S. Department of Health U.S. Departmen t of Justice
and Human Services P.O. Box 146
5600 Fishers Lune Benjamin Franklin Station
Pnrklawn Building, Mail Stop I JC-26 Washington, DC 20044-014 6
Rockville, MD 20857 Tel: (202) 6 16-4357
Dnted:
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