Burk v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1123V
Filed: May 17, 2016
Unpublished
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SETH BURK, *
*
Petitioner, *
* Joint Stipulation on Damages;
v. * Influenza (“Flu”) Vaccine; Menactra
* Meningococcal Vaccine; Guillain-
SECRETARY OF HEALTH * Barré Syndrome (“GBS”); Special
AND HUMAN SERVICES, * Processing Unit (“SPU”)
*
Respondent. *
*
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Anne C. Toale, Maglio Christopher and Toale, Sarasota, FL, for petitioner.
Althea W. Davis, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
Dorsey, Chief Special Master:
On October 5, 2015, Seth Burk (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et
seq., 2 (the “Vaccine Act”). Petitioner alleges that he suffered Guillain-Barré Syndrome
(“GBS”) as a result of his receipt of the influenza (“flu”) and Menactra (meningococcal)
vaccines on November 18, 2014. Petition at 1-3; Stipulation, filed May 17, 2016, at ¶¶
2, 4. Petitioner further alleges that he received the vaccinations in the United States,
that he has suffered the effects of his injury for more than six months, and that he has
not received compensation for his vaccine-related injury. Pet. at ¶¶ 1, 10, 14; see also
Stip. at ¶¶ 3-5. Respondent denies that the flu and meningococcal vaccines caused
petitioner’s GBS or any other injury or his current condition. Stip. at ¶ 6.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National 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).
Nevertheless, on May 17, 2016, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. The undersigned
finds the stipulation reasonable and adopts it as the decision of the Court in awarding
damages, on the terms set forth therein.
The parties stipulate that petitioner shall receive the following compensation:
A lump sum of $75,000.00, in the form of a check payable to petitioner, Seth
Burk. This amount represents compensation for all damages that would be
available under 42 U.S.C. § 300aa-15(a). Stip. at ¶ 8.
The undersigned approves the requested amount for petitioner’s compensation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
. omCB OF SPECIAL MASTERS
SBTHB~ )
)
Petitioner, ) No. 15-1123V
) Chief Special Master
v. ) Nora B. Dorsey
) ECF
SECRBTARYOFHEALTH )
AND HUMAN SERVICES, )
)
Respondent )
SDPVLATION
Tho parties hereby stipulate ~o tho following matters:
1. Seth Burk, 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
int1.uenza ("flu") and Meaactra (meningococcal) vaccines, which vaccines are contained in the
Vaccine Injury Table (tht{Wfable"), 42 C.F.R. § 100.3(a). .
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2. Petitioner received flu and mcmingococcal vaccines on November 18, 2014.
3. The vaccines were administen:d within the United States.
4. Petitioner alleges that he suffered Guillain-Barre Syndrome as the result of his tlu and .
meningococca1 vaccinations and that he suffered the residual effects of this injury for more than
six months.
S. Petitioner ~ents that there has been no prior award or settlement of a civil action
for damages on bis behalf as a result ofhia alleged vaccine injury.
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6. Respondent denies that the flu and meningococcal vaccines caused petitioner's
Guillain-Barr6 Syndrome or any other injury or his current condition.
7. Maintaining 1heir above-s1atcd 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 u practicable after an entry of judgment mlecting a decision consistent with
tho terms of this Stipulation, and after petitioner bas filed an election to receive compensation
pursuant to 42 tf.S.C. f 300aa-21(aXl), the Secretary of Health and Human Services will isslJe
the following vaccine compensation payment
A lump sum of$7S,OOO.OO in the form of a check ~yable to petitioner. This amount
,represents compensation for all damages that would be available under 42 U.S.C.
§ 300aa-1S(a).
9. As soon as practicable after the entry ofjudgment on entitlement in this case, and after
petitioner bas filed both a proper and tiniely election to receive compensation pursuant to 42
U.S.C. I 300aa-21(a)(l), and an application, the parties will submit to further proceedings before
tho special master to award reasonable attorneys' fees and costs incmred in proceeding upon this
l 0. Petitioner and his attorney represent tha.t 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-1 S(g), including State compensation programs, insurance policies, Federal or
State health benefits programs (other than Title XIX of the Social Secwity Act (42 U.S.C.
§ 1396 et seq.)), or entities that provide health services on a pre-paid basis.
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11. Payments made pursuant to pmagraph 8 and any amounts awarded pursuant to
paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-1S(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 attorney's fees and litigation Costs, 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-lS(g) and (h).
13. In.return for the payments dcscn"bcd .in paragraphs 8 and 9, petitioner, in his
individual capacity, and ~n behalf of his heiis, 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 agreem.cuts. judgmen11, claims, damages, loss of services, expenses and all demands
of whatever ldnd or nature) that have been brought. could have been brought, or could be timely
brought in the Court ofFed«al Claims, under the National Vaccine Injury Compensation
Program, 42 U.S.C. § 300aa-10 ct seq., on.account of, or in any way growing out of, any and all·
· known or unknown, suspected or unsuspected persol181 injuries to or death of petitioner resulting
from, or alleged to have resulted from, :0.u and meningococcal vaccinations administered on
November 18, 2014, as alleged by petitioner in a petition for vaccine compensation filed On or
about October S, 2015, in the United States Court of Federal Claims as petitio~ No. 15-1123V.
14. "If petitiouer should die .prior to entry ofjudgment, this agreement sbal1 be voidable ·
upon proper notice to the Court on behalf of either ot both of the parties.
IS. If the special master fails to issue a decision in Complete conformity with tho terms
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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 Stipu)Btion shall be voidable at the sole discretion of either party.
16. This Stipulation expresses a tun and complete negotiated settlement of liability and
damages claimed under the National ~dhood 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 s1ated
and clearly agreed to. The pirties further agree ancJ understand that the award described in this
Stipulation may reflect a compromise of the parties' respective positions as to liability and/or
amoum of damaps, and t\Jrther, that a cbang~ in the nature of the injury or condition or in the
items of compensation sought, is not grounds t.o 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 tlu and meningococcal vaccines caused
petitioner's Guillain-Barr6 Syndrome or my other injury or bis CWTent condition.
18. All rights and obliptions of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END Of STIPULATION
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llespecdhlly submitted,
PETmONER:
J&L(_~
SBTHBURK
A1TORNEY Ol'RBCORD POR A111'110JUZED RBPRDBNTATIVE
Pl'llllOND: 01' TD A1TORNIY GENDAL:
/'}/~~
VINCBNTJ: ~NOSICJ
Depm.y Director
Tonslkaach
Civil Diviaioa
U.S. Department oflusdce
P.O. Box 146
BeJQamin.FJUklin Slltion
Wahin&fHtDC 2Q044..0146
AWORNEY 01' RECORD FOR
RESPONDENT:
:AR.AV. M.D.
A&hu~~
ALTHEA WALK.BR.DAVIS
Acting Director, Division of Injury Senior Trial c.ou.n.1
Compcmatioa Propan1 Tona Branch
Healtbcare SystDS Bureau Civil Division
Health a.omc. ad Servica Adminiabation U.S. Department ofJustice
U.S. Depldment of llelltla 11111 Huaum SCl"rieel P.O. Box 146
5600 Filhen Line Beqlamin Pnmklia S1adon
Park1awa Building, Mail Stop 08Nl46B WuhfD&ton. DC 20044-0146
llockville, MD 20857 (202) 616-0515
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