Skiles v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 14, 2019
* * * * * * * * * * * * * * *
SCOTT SKILES and MISTY SKILES, * No. 18-1597V
parents of M.S., a minor, *
*
Petitioners, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH * Stipulation for Award; Influenza (“flu”)
AND HUMAN SERVICES, * Vaccine; Transverse Myelitis (“TM”)
*
Respondent. *
* * * * * * * * * * * * * * *
DECISION1
On October 16, 2018, Scott and Misty Skiles (“Petitioners”) filed a petition for
compensation on behalf of M.S., a minor, pursuant to the National Vaccine Injury Compensation
Program.2 Pet. At 1, ECF No.1; 42 U.S.C. §§ 300aa-10 to -34 (2012). Petitioners alleged that the
influenza (“flu”) vaccine M.S. received on October 30, 2015, caused her to develop transverse
myelitis (“TM”). See Stip. at 1, ECF No. 28. Petitioners further alleged that M.S. experienced the
residual effects of this injury for more than six months. Id.
On November 13, 2019, the parties filed a stipulation in which they state that a decision
should be entered awarding compensation to Petitioners. Id. at 2. Respondent denies that the flu
vaccine caused M.S.’s alleged TM, or any other injury. Id. Nevertheless, the parties agree to the
joint stipulation, attached hereto as Appendix A. 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 Petitioners shall receive the following compensation:
a. a lump sum of $5,763.96, which amount represents compensation for past
1
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).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
unreimbursable expenses, in the form of a check payable to[P]etitioners, Scott Skiles and
Misty Skiles; and
b. a lump sum of $145,000.00, which amount represents compensation for all remaining
damages that would be available under 42 U.S.C. § 300aa-15(a), in the form of a check
payable to [P]etitioners as guardian(s)/conservator(s) of M.S.'s estate. No payments shall
be made until [P]etitioners provide respondent with documentation establishing that they
have been appointed as guardian(s)/conservator(s) of M.S.'s estate.
Id.
I approve the requested amount for Petitioners 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.3
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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
SCOTT SKILES and MISTY SKILES, )
parents of M.S., a minor, )
)
Petitioners, ) No. 18-1597V
) Special Master Sanders
v. ) ECF
)
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
_________________
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. On behalf of their dau~hter, M.S., Scott Skiles and Misty Skiles ("petitioners") tiled 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 M.S.'s receipt of an influenza ("flu") vaccine, which vaccine is
contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a).
2. M.S. received the flu vaccine on October 30, 2015.
3. The vaccination was administered within the United States.
4. Petitioners allege that M.S. suffered transverse myelitis ("TM") as a result of
receiving the flu vaccination, and further allege that she experienced the residual effects of her
injury for more than six months.
5. Petitioners represent that there has been no prior award or settlement of a civil action
for damages on M.S. 's behalf as a result of her condition.
6. Respondent denies that the flu vaccine caused M.S. to suffer TM 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 petitioners have filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa-2 l(a)(l ), the Secretary of Health and Human Services will issue
the following vaccine compensation payments:
a. a lump sum of $5,763.96, which amount represents compensation for past
unreimbursable expenses, in the form of a check payable to petitioners, Scott Skiles and
Misty Skiles; and
b. a lump sum of $145,000.00, which amount represents compensation for all remaining
damages that would be available under 42 U.S.C. § 300aa-15(a), in the form of a check
payable to petitioners as guardian(s)/conservator(s) of M.S.'s estate. No payments shall
be made until petitioners provide respondent with documentation establishing that they
have been appointed as guardian(s)/conservator(s) of M.S.'s estate.
9. As soon as practicable after the entry of judgment on entitlement in this case, and after
petitioners have filed both a proper and timely election to receive compensation pursuant to
42 U.S.C. § 300aa-21(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.
I 0. Petitioners and their 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, 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.
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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 funds.
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 M.S. 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. Petitioners represent that they presently are or within 90 days of the date of judgment
will become, duly authorized to serve as guardians/conservators of M.S. 's estate under the laws
of the State of Arkansas. No payments pursuant to this Stipulation shall be made until
petitioners provide the Secretary with documentation establishing their appointment as
guardians/conservators of M.S.'s estate. If petitioners are not authorized by a court of competent
jurisdiction to serve as guardians/conservators of the estate of M.S. at the time a payment
pursuant to this Stipulation is to be made, any such payment shall be paid to the party or parties
appointed by a court of competent jurisdiction to serve as guardian/conservator of the estate of
M.S. upon submission of written documentation of such appointment to the Secretary.
14. In return for the payments described in paragraphs 8 and 9, petitioners, in their
individual capa~ity and as legal representatives of M.S., on behalf of themselves, M.S., and her
heirs, executors, administra.tors, successors or assigns, do 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
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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-l Oet 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 M.S. resulting from, or alleged to have ~esulted
from, the flu vaccination administered on October 30, 2015, as alleged by petitioners in the
petition for vaccine compensation filed on October 16, 2018, in the United States Court of
Federal Claims as petition No. l 8-l 597V.
15. If M.S. should die prior to erttry of judgment, this agreement shall be voidable upon
proper notice to the Court on behalf of either or both of the parties.
16. 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.
17. This Stipulation expre~ses 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 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.
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18. This 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 M.S. to develop TM ~r any
other injury.
19. All rights and obligations of petitioners hereunder shall apply equally to petitioners'
heirs, executors, administrators, successors, and/or assigns as legal representatives of M.S.
END OF STIPULATION
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Respectfully submitted,
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONERS: OF IE ATTORNEY GENERAL:
lm,dd t II~ ~ 4fJ