Nixon v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 21, 2018
*************************
JESSICA NIXON, * UNPUBLISHED
Administrator of the Estate of *
RHONDA NIXON, * No. 13-738V
*
Petitioner, * Special Master Gowen
v. *
* Joint Stipulation; Influenza;
SECRETARY OF HEALTH * Guillain-Barre Syndrome;
AND HUMAN SERVICES, * GBS; Acute Disseminated
* Encephalomyelitis; ADEM;
Respondent. * Significant Aggravation.
*************************
Clifford John Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for petitioner.
Voris Edward Johnson, United States Department of Justice, Washington, DC, for respondent.
DECISION ON STIPULATION1
On September 25, 2013, Rhonda Nixon filed a petition in the National Vaccine Injury
Compensation Program (“Program”).2 Petition, ECF No. 1. Ms. Nixon filed an amended petition
on October 15, 2013, alleging that she suffered from Guillain-Barre Syndrome (“GBS”) or acute
disseminated encephalomyelitis (“ADEM”) as a result of receiving the flu vaccination on October
29, 2010. Amended Petition at 1, ECF No. 8. In the alternative, Ms. Nixon alleged that the flu
vaccine significantly aggravated an underlying GBS or ADEM. Id. On October 27, 2017, the case
caption was amended to reflect that Ms. Rhonda Nixon had passed away, and her daughter, Ms.
Jessica Nixon (“Petitioner”), was appointed administrator of her estate. Order Granting Motion to
Amend Case Caption, ECF No. 99.
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Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision 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 decision
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 decision
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.
On August 21, 2018, the parties filed a joint stipulation in which they stated that a decision
should be entered awarding compensation to petitioner. Stipulation for Award, ECF No. 115.
Respondent denied that the influenza vaccine caused Rhonda Nixon’s alleged GBS or ADEM,
residual effects, or any other injury or her death. Id. at ¶ 6.
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 compensation to
petitioner according to the terms of the joint stipulation attached hereto as Appendix A.
The joint stipulation awards:
A lump sum of $25,000.00 in the form of a check payable to petitioner, Jessica Nixon,
as Personal Representative of the estate of Rhonda Nixon. This amount represents
compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
I find the stipulation reasonable and I adopt it as the decision of the Court in
awarding damages, on the terms set forth therein.
Accordingly, 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
Pursuant to Vaccine Rule 11(a), entry of judgment is 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
__________________________________________
)
JESSICA NIXON, administrator of the estate of )
RHONDA NIXON, )
)
Petitioner, )
) No. 13-738V (ECF)
v. ) Special Master Gowen
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
STIPULATION
The parties hereby stipulate to the following matters:
1. Rhonda Nixon filed a petition for vaccine compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the “Vaccine Program”).
Jessica Nixon, administrator of the estate of Rhonda Nixon, was substituted as the named
petitioner on October 27, 2017, following Rhonda Nixon’s death. The petition, as amended,
seeks compensation for injuries sustained following Rhonda Nixon’s receipt of an influenza
vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R.
§100.3(a).
2. Rhonda Nixon received an influenza vaccine on October 29, 2010.
3. The vaccine was administered within the United States.
4. Petitioner alleges that Rhonda Nixon subsequently suffered either Guillain-Barré
Syndrome (“GBS”) or acute disseminated encephalomyelitis (“ADEM”), which petitioner
alleges was either caused-in-fact or significantly aggravated by Rhonda Nixon’s receipt of the
influenza vaccine. Petitioner further alleges that Rhonda Nixon experienced the residual effects
of her injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil
action for damages as a result of Rhonda Nixon’s condition.
6. Respondent denies that the influenza vaccine caused Rhonda Nixon’s alleged
GBS or ADEM, residual effects, or any other injury or her death.
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 $25,000.00 in the form of a check payable to petitioner,
Jessica Nixon, as Personal Representative of the estate of Rhonda Nixon.
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
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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. § 1396et seq.), or by entities that provide health services on a pre-paid basis.
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. Petitioner represents that she presently is, or within 90 days of the date of
judgment will become, duly authorized to serve as Personal Representative of Rhonda Nixon’s
estate under the laws of the State of Arizona. No payment pursuant to this Stipulation shall be
made until petitioner provides the Secretary with documentation establishing her appointment as
Personal Representative of Rhonda Nixon’s estate. If petitioner is not authorized by a court of
competent jurisdiction to serve as Personal Representative of the estate of Rhonda Nixon at the
time a payment pursuant to this Stipulation is to be made, any such payment shall be paid to the
party or parties appointed by a court of competent jurisdiction to serve as Personal
Representative of the estate of Rhonda Nixon upon submission of written documentation of such
appointment to the Secretary.
13. In return for the payments described in paragraphs 8 and 9, petitioner, in her
individual capacity and as Personal Representative of the estate of Rhonda Nixon, and on behalf
of the estate’s heirs, executors, administrators, successors or assigns, does forever irrevocably
and unconditionally release, acquit and discharge the Secretary of Health and Human Services
and the United States of America from any and all actions or causes of action (including
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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. § 300aa-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, Rhonda Nixon resulting
from, or alleged to have resulted from, the influenza vaccine administered on October 29, 2010,
as alleged by petitioner in a petition for vaccine compensation filed on or about September 25,
2013, in the United States Court of Federal Claims as petition No. 13-738V.
14. 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.
15. This Stipulation expresses a full and complete negotiated settlement of liability
and damages claimed under the National 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.
16. This Stipulation shall not be construed as an admission by the United States of
America or the Secretary of Health and Human Services that Rhonda Nixon’s alleged GBS or
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ADEM and residual effects, or any other injury, or her death, was caused-in-fact by the influenza
vaccine.
17. All rights and obligations of petitioner hereunder shall apply equally to
petitioner’s heirs, successors and/or assigns.
END OF STIPULATION
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