Dilsaver v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-716V
(not to be published)
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LUCIANNA DILSAVER, *
* Special Master Corcoran
*
Petitioner, * Filed: July 25, 2019
*
v. *
* Decision by Stipulation; Influenza (“flu”)
SECRETARY OF HEALTH * Vaccine; Dermatomyositis; Necrotizing
AND HUMAN SERVICES, * Autoimmune Myopathy.
*
Respondent. *
*
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Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Gabrielle M. Fielding, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On June 20, 2016, Lucianna Dilsaver filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that she
suffered from dermatomyositis and necrotizing autoimmune myopathy as a result of the influenza
(“flu”) vaccine she received on October 8, 2014. Petition (ECF No. 1) at 1. Petitioner further
alleges that she has experienced the residual effects of this condition for more than six months.
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the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 whole Decision will be available online in its
present form. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Respondent denies that the flu vaccine caused Petitioner’s condition (or any other injury).
Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation
(filed on July 25, 2019) that the issues before them could be settled, and that a decision should be
entered awarding Petitioner compensation. See Stipulation, filed July 25, 2019 (ECF No. 42)
(“Stip.”).
Based upon my own review of the record, I conclude that the parties’ stipulation (as
attached hereto) 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 $206,244.00, which represents compensation for first year life care
expenses ($6,244.00), and combined lost earnings, pain and suffering, and past
unreimbursable expenses ($200,000.00), in the form of a check payable to Petitioner;
and
• An amount sufficient to purchase an annuity contract as described in Paragraphs 9-10
of the parties’ stipulation (as attached hereto).
Stip. at 2-3. This amount represents compensation for all damages under Section 15(a) of the Act
to which Petitioner is entitled.
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.3
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.
2