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

Sn the Cited States Court of Federal Clanns
OFFICE OF SPECIAL MASTERS
No. 20-392V
Filed: May 12, 2021
*K * * * * OR * OR * OR * OO
MICHAEL AUEN, * UNPUBLISHED
*K
Petitioner, * Decision on Joint Stipulation;
* Guillain Barre Syndrome
Vv. * (“GBS”); Tetanus, diphtheria,
* and acellular pertussis (“Tdap”)
SECRETARY OF HEALTH * Vaccine.
AND HUMAN SERVICES, *
*K
Respondent. **
*K * * * * OR * OR * OR * OO
Diana Stadelnikas, Esq., Maglio Christopher and Toale, PA, Sarasota, FL, for petitioner.
Mark Hellie, Esq., US Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION!
Roth, Special Master:
On April 6, 2020, Michael Auen [“Mr. Auen” or “petitioner’] filed a petition for
compensation under the National Vaccine Injury Compensation Program.’ Petitioner alleges that
he suffered from Guillain Barre Syndrome (“GBS”) after receiving a tetanus, diphtheria, and
acellular pertussis (“Tdap”) vaccine on June 7, 2018. Stipulation, filed May 12, 2021, at J 1-4.
Respondent denies that the immunization caused petitioner’s injury. Stipulation at{ 6.
! Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’ 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. Jd.
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).
Nevertheless, the parties have agreed to settle the case. On May 12, 2021 the parties filed
a joint stipulation agreeing to settle this case and describing the settlement terms.
Respondent agrees to issue the following payment:
A lump sum of $60,000.00 in the form of a check payable to petitioner, Michael
Auen. 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.+
IT ISSO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
* Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
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Jn the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
MICHAEL AUEN,
Petitioner,
Case No. 20-392V (ECF)
v. CHIEF SPECIAL MASTER
CORCORAN
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Michael Aven, 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 tetanus, diphtheria, and acellular pertussis (“Tdap”) vaccine,
which is a vaccine contained in the Vaccine Injury Table (the “Table”),
42 C.F.R. § 100.3(a).
2. Petitioner received the Tdap vaccine on June 7, 2018.
3. The vaccination was administered within the United States.
4. Petitioner alleges that he sustained Guillain Barré Syndrome (“GBS”) asa
result of receiving the Tdap vaccine and alleges that he experienced the residual effects of
this injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement ofa
civil action for damages on his behalf as a result of his alleged injuries.
6. Respondent denies that the Tdap vaccine caused petitioner’s alleged GBS
or any other injury.
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(aX{1), the Secretary of Health
and Human Services will issue the following vaccine compensation payment:
A lump sum of $60,000.00 in the form of a check payable to petitioner. 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 in this case, and affer
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 his 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,
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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.
11. Payment made pursuant to paragraph 8 of this Stipulation 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 finds.
12. The parties and their attorneys further agree and stipulate that, except for
any award for attorneys’ fees and litigation costs, and past unreimbursed expenses, 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-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, 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 (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 seg., 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 ftom, or alleged to have
resulted from, the Tdap vaccination administered on June 7, 2018, as alleged by
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petitioner in a petition for vaccine compensation filed on or about April 6, 2020, in the
United States Court of Federal Chims as petition No. 20-392V.
14. 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.
15. 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.
16. This Stipulation expresses a fill 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 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.
17. This Stipulation shall not be construed as an admission by the United States
or the Secretary of Health and Human Services that the Tdap vaccine caused petitioner’s
aleged GBS or any other injury or his current condition.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner’s heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
Case 1:20-vv-00392-UNJ Document 22 Filed 05/12/21 Page 6 of 6
Respectfully submitted,
PETITIONER:
Lilie
ATTORNEY OF RECORD FOR
Las vel hb
DIANA STAD!
Counsel for Petitioner
Maglio, Christopher & Toale, P.A.
1605 Main St., Suite 710
Sarasota, FL 34236
dstadelnikas@mctlaw.com
(888) 952-5242
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
CAIYPT Dale Wheshlar, ONSe, fer
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Healthcare Systems Bureau
Health Resources and
Services Administration
U.S. Department of Health and
Human Services
5600 Fishers Lane
Rockville, MD 20857
Dated: oS/1\|200|
AUTHORIED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
Secor nd PeeutV—
HEATHER L. PEARLMAN
Acting Deputy Director
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTONEY OF RECORD FOR
RESPONDENT:
Nok K NA
lu, Beech ( Pe og sp AW
MARK K. HELLIE
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
mark.hellie@usdoj. gov
(202) 616-4208