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

In the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1709V
(not to be published)
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*
ANGELA LEE, :
* Filed: April 22, 2021
Petitioner, *
*
*
V. * Decision by Stipulation; Damages;
* Influenza (“Flu”) Vaccine; Guillain-Barré
SECRETARY OF HEALTH AND : syndrome (“GBS”).
HUMAN SERVICES, .
*
Respondent. *
*
*
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David Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner
Emilie Williams, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON JOINT STIPULATION!
On November 9, 2019, Angela Lee (“Petitioner”) filed a petition, seeking compensation
under the National Vaccine Injury Compensation Program (“the Vaccine Program”).” Pet., ECF
No. 1. Petitioner alleges she developed Guillain-Barré syndrome (“GBS”) within the time period
set forth in the Table, or in the alternative, that her alleged GBS was caused by the flu vaccination
she received on October 3, 2017; she further alleges that she experienced residual effects of this
condition for more than six months. See Stipulation { 2, 4, dated April 22, 2021 (ECF No. 33);
see also Petition.
' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the Decision will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), 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 Decision in its present form will be available. Jd.
* The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
Respondent denies “that petitioner sustained a Table injury, and denies that the flu vaccine
is the cause of petitioner’s alleged GBS, chronic inflammatory demyelinating polyneuropathy
(“CIDP”), or any other injury or her current condition.” See Stipulation { 6. Nonetheless, both
parties, while maintaining their above-stated positions, agreed in a stipulation filed April 22, 2021
that the issues before them can be settled and that a decision should be entered awarding Petitioner
compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth
therein.
The stipulation awards:
a lump sum of $60,000.00 in the form of a check payable to petitioner.
Stipulation { 8. This award represents compensation for all damages that would be available under
42 U.S.C. § 300aa-15(a).
I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
of the Court is directed to enter judgment herewith.?
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice
renouncing their right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
ANGELA LEE, )
)
Petitioner, )
)
Vv. ) No. 19-1709V
) Special Master Oler
SECRETARY OF )
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner Angela Lee (“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 influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the
“Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received a flu vaccine on or about October 3, 2017.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she developed Guillain-Barre Syndrome (“GBS”) within the
time period set forth in the Table, or in the alternative, that her alleged GBS was caused by the
vaccine. She further alleges that she experienced residual effects of this condition 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 her condition.
6. Respondent denies that petitioner sustained a Table injury, and denies that the flu
vaccine is the cause of petitioner’s alleged GBS, chronic inflammatory demyelinating
polyneuropathy (“CIDP”), or any other injury or her 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 9 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 $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 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 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-15(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.
11. Payment made pursuant to paragraph 9 and any amounts awarded pursuant to
paragraph 10 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. 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 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 9 and 10, 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 flu vaccination administered on October 3, 2017, as
alleged by petitioner in a petition for vaccine compensation filed on or about November 4, 2019,
in the United States Court of Federal Claims as petition No. 19-1709V.
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. Ifthe 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 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 10 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 immunization caused petitioner’s alleged GBS,
CIDP, or any other injury or her 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
~~~ ~~ ~~ ™~ ™~ O™CO™OF™:
Respectfully submitted,
PETITIONER:
(ng Sev.
ANGE#/A LEE
ATTORNEY OF RECORD FOR
PETITIONER:
DAVID J. CARNEY, ES
Green & Schafle, LLC
2332 South Broad Street
Philadelphia, PA 19145
(215) 326-9256
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
CAPT Dake Wuthlar., PN Se, 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, 08N146B
Rockville, MD 20857
Dated: of 2.82.1
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
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
ATTORNEY OF RECORD FOR
RESPONDENT:
Emits wthanr
EMILIE F. WILLIAMS
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 305-0124
(202) 305-0124
emilie.williams@usdoj.gov