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

Mn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: May 26, 2021
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CHARLES DECHENE, * No. 19-968V
*
Petitioner, * Special Master Sanders
v. *
*
SECRETARY OF HEALTH * Stipulation for Award; Tetanus-Diphtheria
AND HUMAN SERVICES, * (“Td”) Vaccine; Guillain-Barré Syndrome
* (“GBS”)
Respondent. *
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John R. Howie, Jr., Howie Law, PC, Dallas, TX, for Petitioner.
Claudia B. Gangi, United States Department of Justice, Washington, DC, for Respondent.
DECISION!
On July 3, 2019, Charles DeChene (“Petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program.” 42 U.S.C. §§ 300aa-10 to -34 (2012).
Petitioner alleged that the Tetanus-diphtheria (“Td”) vaccine he received on July 6, 2016, caused
him to develop Guillain-Barré Syndrome (“GBS”). See Pet. {| 1, 13, ECF No. 1. Petitioner further
alleged that his injury lasted for more than six months. /d. 7 12. Petitioner filed an amended petition
alleging the same on June 24, 2020. Am. Pet. {| 1, 38, 40, ECF No. 15.
On May 25, 2021, the parties filed a stipulation in which they state that a decision should
be entered awarding compensation to Petitioner. Stipulation { 7, ECF No. 27. The parties state that
“Respondent denies that the Td vaccine caused [P]etitioner’s alleged GBS, or any other injury or
his current condition. /d. 7 6. Nevertheless, the parties agree to the joint stipulation, attached hereto
as Appendix A. See id. 7 7. I find the stipulation reasonable and adopt 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:
' This Decision shall be posted on the website of the United States Court of Federal Claims, in accordance
with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as
amended at 44 U.S.C. § 3501 note (2012)). This means the Decision will be available to anyone with
access to the Internet. As provided by Vaccine Rule 18(b), each party has 14 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).
* National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
A lump sum of $82,000.00, in the form of a check payable to
[P]etitioner. This amount represents compensation for all damages that
would be available under 42 U.S.C. § 300aa-15(a).
Id. 1 8.
I approve the requested amount for Petitioner’s compensation. Accordingly, an award
should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.*
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
CHARLES DECHENE, )
)
Petitioner, )
) No. 19-968V
v. ) Special Master Sanders
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the followmg matters:
1. Charles DeChene, 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 mjuries allegedly related to petitioner’s receipt
of the Tetanus-diphthera (“Td”) vaccine, which vaccine is contained in the Vaccine Injury Table
(the “Table”’), 42 C.F.R. § 100.3 (a).
2. Petitioner received the Td vaccine on or about July 6, 2016.
3. The vaccination was administered within the United States.
4, Petitioner alleges that he suffered Guilain Barré Syndrome (“GBS”) as a result of his
Td vaccine. He further alleges that he experienced the residual effects of his alleged injuries for
more than six months after vaccme admmustration.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on his behalf as a result of his condition.
6. Respondent denies that the Td vaccine caused petitioner’s alleged GBS, or any other
injury or his current condition. |
7. Maintaming them 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 mn paragraph 8 of this Stipulation.
8. Assoon 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 folowmg vaccine compensation payment:
A lump sum of $82,000.00 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 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 Hable
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.
11. Payments made pursuant to paragraphs 8 and 9 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 ther 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 payment described in paragraph 8 and any amount awarded pursuant
to paragraph 9, petitioner, m his individual capacity and on behalf of his heirs, executors,
admmistrators, 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 i 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 injnes
to or death of petitioner resulting from, or alleged to have resulted from, the Td vaccination
administered on July 6, 2016, as alleged by petitioner in-a petition for vaccme compensation
filed on or about July 3, 2019, im the United States Court of Federal Claims as petition No. 19-
968V.
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 m 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 9 above. There is absohitely no agreement on the part of the
parties hereto to make any payment or to do any act or thing other than is herem 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 lability and/or
amount of damages, and further, that a change im 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 Td vaccine caused petitioner's alleged GBS, any
other injury, or his current disabilities.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns,
END OF STIPULATION
Respectfully submitted,
PETTAONER:
LE
CHARLES DECHENE
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
HEATHER L. PEARLMAN
Acting Deputy Drector
2608 Hibernia Street Torts Branch
Dallas, TX 75204 Civil Division
Tel (214) 622-6340 U.S. Departnent of Justice
Email: jhowie@howielaw.net P.O. Box 146
Benjamm Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH AND RESPONDENT:
HUMAN SERVICES:
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TAMARA OVERBY CLAUDIA B. GANGI
Actng Director, Division of Injury Senior Trial Attomey
Compensation Programs Torts Branch, Civil Division
Healthcare Systems Bureau U.S, Department of Justice
Health Resources and Services P.O. Box 146
Admiustration Benjamin Franklin Station
U.S. Department of Health Washington, D.C. 20044-0146
and Human Services Tek (202) 919-6599
5600 Fishers Lane, 08N146B Email: claudia.gangi@usdoj.gov
Rockville, MD 20857
Dated: OS 125 / 202 |