Cody v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1013V
UNPUBLISHED
GLADYS CODY, Chief Special Master Corcoran
Petitioner, Filed: October 4, 2021
v.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages; Influenza
HUMAN SERVICES, (Flu) Vaccine; Guillain-Barre
Syndrome (GBS)
Respondent.
John Graham Schultz, Leavy Shultz Davis, PS, Kennewick, WA, for Petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On July 15, 2019, Gladys Cody 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 she suffered Guillain-Barre Syndrome (GBS) as a result of
her October 23, 2018 influneza (“flu”) vaccination. Petition at 1; Stipulation, filed at
September 28, 2021, ¶¶ 1-2; 4. The case was assigned to the Special Processing Unit of
the Office of Special Masters.
On June 10, 2020, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for GBS. On September 28, 2021, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. I find the
stipulation reasonable and adopt it as my decision awarding damages, on the terms set
forth therein.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required 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). This means the Decision will be available to anyone with access to the
internet. 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, I agree that the identified material fits within this definition, I 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
a. An amount sufficient to purchase the annuity contract described in
paragraph 10 of the parties’ Stipulation, paid to the life insurance
company from which the annuity will be purchased (the "Life
Insurance Company"); and
b. A lump sum of $437,290.87 in the form of a check payable to Petitioner.
This amount represents compensation for all remaining damages that
would be available under 42 U.S.C. §300aa-15(a), including
$175,000.00 for pain and suffering, $184,883.95 for past unreimbursed
medical expenses, and $77,406.92 for the first year of future
unreimbursed medical expenses.
Stipulation at ¶ 8.
I approve 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/Brian H. Corcoran
Brian H. Corcoran
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.
IN THE UNITED ST ATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
GLADYS CODY,
Petitioner,
No. l9-l013V
v. Chief Special Master Corcoran (SPU)
ECF
SECRETARY OF HEAL TH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
I. Petitioner Gladys Cody ("petitioner") filed a petition for vaccine compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l Oto -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. § I 00.3 (a).
2. Petitioner received her flu vaccination on October 23, 2018.
3. The vaccination was administered within the United States.
4. Petitioner sustained the onset of Guillain-Barre Syndrome ("GBS'') within the time
period set forth in the Table following administration of the flu vaccine, and experienced the
residual effects of her GBS for more than six months.
5. There is not a preponderance of the evidence demonstrating that petitioner's GBS and
its residual effects were due to a factor unrelated to this October 23, 2018 flu vaccine.
6. Petitioner represents that there has been no prior award or settlement of a civil action
I of7
for damages on her behalf as a result of her condition.
7. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine
Program for her GBS Table injury. Therefore, 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-2l(a)(I), the Secretary of Health and Human Services will issue
the following vaccine compensation paymems:
a. An amount sufficient to purchase the annuity contract described in
paragraph IO below, paid to the life insurance company from
which the annuity will be purchased (the "Life Insurance
Company"); 1 and
b. A lump sum of $437,290.87, in the form of a check payable to
petitioner. This amount represents compensation for all remaining
damages that would be available under 42 U.S.C. §300aa-l 5(a),
including$ I 75,000.00 for pain and suffering,$ I 84,883.95 for past
unreimbursed medical expenses, and $77,406.92 for the first year
of future unreimbursed medical expenses.
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. Be::.t Comµany : A++, A :, A+g, A+p, /\+r, or J\+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;
1
Notwithstanding references herein to "the Life Insurance Company'' or "the annuity contract,"
to satisfy the conditions set forth herein, in respondent's sole and absolute discretion, respondent
may purchase one or more annuity contracts from one or more life insurance companies.
2 of7
d. Fitch Credit Rating Company, Insurance Company Claims Paying
Ability Rating: AA-, AA, AA+, or AAA.
I 0. The Secretary of Health and Human Services agrees to purchase an annuity contract
from the Life Insurance Company for the benefit of petitioner, pursuant to which the Life
Insurance Company will agree to make payments periodically to petitioner for the following
items of compensation:
a. For future unreimbursable Medicare Supplement F expenses, beginning on the
first anniversary of the date of judgment, an annual amount of$4,123.20 to be
paid for the remainder of petitioner's life, increasing at the rate of five percent
(5%), compounded annually from the date of judgment.
b. For future unreimbursable Medication, TED Hose, Medical Alert Pendant,
Wheelchair Cushion, Power Scooter, and Scooter Maintenance expenses,
beginning on the first anniversary of the date of judgment, an annual amount of
$1,072.18 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.
c. For future unreimbursable Vehicle Modification Maintenance expenses,
beginning on the first anniversary of the date of judgment, an annual amount of
$100.00 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.
d. For future unreimbursable Case Management expenses, beginning on the first
anniversary of the date of judgment, an annual amount of $6,144.00 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.
At the sole discretion of the Secretary of Health and Human Services, the periodic
payments 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 petitioner is
alive at the time that a particular payment is due. Written notice to the Secretary of Health and
3 of7
Human Services and the Life Insurance Company shall be provided within twenty (20) days of
petitioner'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 pur~uant 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
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-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 her attorney represent that they have identified to respondent all
known soun.:es of payment for items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-l 5(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.
4 of7
14. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 12 ofthis 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-
i 5(a) and (dJ, and subject to the conditions of 42 U.S.C. §§ 300aa-l 5(g) and (h).
16. In return for the payments described in paragraphs 8 and 12, 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. § 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 petitioner resulting
from, or alleged to have resulted from, the influenza vaccination administered on Octoher 23.
2018, as alleged by petitioner in a petition for vaccine compensation filed on July 15, 2019, in
the United States Court of Federal Claims as petition No. 19-1013V.
17. 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.
5 of7
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
pa1ties 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 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. The 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 injury or any
other injury or her current condition; however, petitioner has satisfied the Table criteria to
establish entitlement to compensation.
21. 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.
22. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
6 of7
Respectfully submitted,
PETITIONER:
( / J) 7
,tJJ~
GLADYSCY
ATTORNEY OF RECORD AUTHORIZED REPRESENTATIVE
FOR PETITIONER: OF THE ATTORNEY GENERAL:
c~1-14L~ ~~~
HEATHER L. PEARLMAN
J2~ G. SCHULTZ
~eavy Schultz Davis, P.S. Deputy Director
2415 W. Falls Avenue Torts Branch, Civil Division
Kennewick, WA 99336 U.S. Department of Justice
Tel: 509-736-1330 P.O. Box 146
Email: jschultz@tricitylaw.com Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
~T~
z;;a&, ~ I
TAMARA OVERBY
D~Sc.-,#-~ ~w~L- P~
ADRIANA TEITEL
Acting Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch, Civil Division
Healthcare Systems Bureau U.S. Department of Justice
Health Resources and Services P.O. Box 146
Administration Benjamin Franklin Station
U.S. Department of Health Washington, DC 20044-0146
and Human Services Tel: 202-616-3677
5600 Fishers Lane, 08N 146B Email: adriana.teitel@usdoj.gov
Rockville, MD 20857
Dated: o,/u,liazt
7 of7