Jeffers v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-596V
Filed: August 24, 2018
* * * * * * * * * * * * *
OLIVIA JEFFERS, as Natural *
Guardian and Legal Representative *
of her Minor Son, X.J. * UNPUBLISHED
*
Petitioner, * Decision on Joint Stipulation;
* Transverse Myelitis;
v. * Influenza (“Flu”) Vaccine
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Nancy Myers Esq., Ward Black Law, Greensboro, NC, for petitioner.
Lara Englund, Esq., US Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Roth, Special Master:
On May 3, 2017, Petitioner [“Ms. Jeffers or “petitioner”] filed a petition on behalf of her
minor son, X.J., for compensation under the National Vaccine Injury Compensation Program.2
Petitioner alleges that he developed transverse myelitis after receiving an influenza (“flu”) vaccine
1
Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request 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). Otherwise, the whole Decision will be available to the public. Id.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).
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on November 13, 3015. Stipulation, filed August 16, 2018, at ¶¶ 1-4. Respondent denies that any
of the aforementioned immunizations caused petitioner’s injury. Stipulation at ¶ 6.
Nevertheless, the parties have agreed to settle the case. On August 16, 2018, the parties
filed a joint stipulation agreeing to settle this case and describing the settlement terms.
Respondent agrees to issue the following payments:
a. A lump sum of $63,497.39, which represents a lien for services rendered in the
form of a check payable jointly to petitioner, Olivia Jeffers, and
Optum Subrogation Services
File #SN13439094
75 Remittance Drive
Suite 6019
Chicago, IL 60675-6019
b. A lump sum of $500.00, in the form of a check payable to petitioner for past
unreimbursed expenses; and
c. 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 (the “Life Insurance Company”).
This amount represents compensation for all damages that would be available under §
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 is directed to enter judgment in accordance
with this decision.3
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
OLIVIA JEFFERS, as Natural Guardian and )
Legal Representative of her Minor Son, X.J., )
)
Petitioner, )
)
v. ) No. 17-596V
) Special Master Mindy Michaels Roth
SECRETARY OF )
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. On behalf of her son, X.J., 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 X.J.’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).
2. X.J. received his immunization on or about November 13, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that the vaccine caused X.J. to suffer from transverse myelitis, and
that X.J. experienced 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 behalf of X.J. as a result of his condition.
6. Respondent denies that the vaccine caused X.J. to suffer from transverse myelitis 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 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 payments for all damages that would be available under 42
U.S.C. §300aa-15(a):
a. A lump sum of $63,497.39, which amount represents reimbursement of a lien for
services rendered on behalf of X.J., in the form of a check payable jointly to
petitioner and
Optum Subrogation Services
File # SN13439094
75 Remittance Drive
Suite 6019
Chicago, IL 60675-6019
Petitioner agrees to endorse this check to Optum Subrogation Services.
b. A lump sum of $500.00, in the form of a check payable to petitioner for past
unreimbursed expenses; and
c. 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 $250,000,000.00 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, Aa1, or Aaa;
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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
from the Life Insurance Company for the benefit of X.J., pursuant to which the which the Life
Insurance Company will agree to make four lump sum payments to X.J. for all remaining
damages that would be available under 42 U.S.C. §300aa-15(a), as follows:
a. a guaranteed lump sum payment of $31,087.00 to be paid on August 27, 2020;
b. a guaranteed lump sum payment of $32,126.00 to be paid on August 27, 2021;
c. a guaranteed lump sum payment of $33,229.00 to be paid on August 27, 2022; and
d. a guaranteed lump sum payment of $34,464.00 to be paid on August 27, 2023.
The period certain payments shall be made as set forth; however, should X.J. predecease any
date of payment referenced above in this paragraph or be declared incompetent by a court with
proper jurisdiction, then any remaining payment shall be made to X.J.’s estate. Written notice to
the Secretary of Health and Human Services and to the Life Insurance Company shall be
provided within twenty (20) days of X.J.’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
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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 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.
13. 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.
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, the money provided pursuant to this Stipulation will be
used solely for the benefit of X.J. 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 her
individual capacity and as legal representative of X.J., on behalf of herself, X.J., and his heirs,
executors, administrators, successors or assigns, does forever irrevocably and unconditionally
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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. § 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 X.J. resulting from, or alleged to have resulted from, the vaccination
administered on November 13, 2015, as alleged by petitioner in a petition for vaccine
compensation filed on or about May 3, 2017, in the United States Court of Federal Claims as
petition No. 17-596V.
17. If X.J. 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 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
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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 X.J. to suffer transverse
myelitis 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 as legal representatives of X.J.
END OF STIPULATION
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