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

Sn the Cnited States Court of Federal Claiung
OFFICE OF SPECIAL MASTERS
Filed: December 17, 2020
a ee ee ee ee
PATRICIA L. MCAVOY, * Unpublished
As personal representative of, *
ESTATE OF DANIEL W. MCAVOY *
*
Petitioner, * No. 19-357V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Influenza (“flu”); Cellulitis;
* Stipulation for Award.
Respondent. *
* OF OF FF KF KF KK HK HK HK
Andrew D. Downing, Van Cott & Talamante, PLLC, for petitioner.
Claudia B. Gangi, Department of Justice, Washington, D.C., for respondent.
DECISION FOR STIPULATION!
On March 8, 2019, Patricia L. McAvoy, as personal representative of the Estate of Daniel
W. McAvoy (“petitioner”)’, filed a petition in the National Vaccine Injury Program.* Mr. Daniel
McAvoy received an influenza vaccine on October 12, 2016. Petition at {2 (ECF No. 1).
Petitioner alleges that as a result of Daniel McAvoy receiving the influenza vaccine, he suffered
cellulitis. 7d. at (4; Stipulation at {| 4 (ECF No. 44).
' Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the
decision.” Jd. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. [d.
> On January 28, 2020, petitioner filed a motion to substitute party and notice of death. ECFF No. 33. Petitioner’s
motion was granted ton January 31, 2020. ECF No. 34
3 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
On December 17, 2020, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation at 7. Respondent denies that the flu
vaccine caused Mr. McAvoy’s alleged cellulitis or any other injury and further denies that his
death was a sequela of an alleged vaccine-related injury. /d. at { 6. 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 to petitioner according to the
terms of the stipulation attached hereto as Appendix A. Id. at] 7.
The stipulation awards:
1) A lump sum of $86,599.04 in the form of a check payable to petitioner as
personal representative of the estate of Daniel W. McAvoy. This amount
represents compensation for all damages that would be available under 42
U.S.C. § 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 SHALL ENTER JUDGMENT in
accordance with the terms of the parties’ stipulation.*
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
*Entry of judgment is expediated by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
PATRICIA L. MCAVOY, as Personal )
Representative for the Estate of )
DANIEL W. MCAVOY, )
)
Petitioner, )
) No. 19-357V
Vv. ) Special Master Gowen
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Patricia L. McAvoy (“petitioner”), as personal representative of the estate of Daniel
W. McAvoy (“Mr. McAvoy”), deceased, seeks vaccine compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the “Vaccine Program”),
for injuries allegedly related to Mr. McAvoy’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. Mr. McAvoy received the flu vaccine on October 12, 2016.!
3. The vaccine was administered within the United States.
4. Petitioner alleges that as a result of Mr. McAvoy receiving the flu vaccine, Mr.
McAvoy suffered cellulitis. Mr. McAvoy passed away on August 22, 2019. Petitioner has not
+ Mr. McAvoy also received a Pneumovax-23 vaccine in the same arm on the same day.
Pneumovax-23 vaccine is not contained in the Table.
filed an Amended Petition alleging that Mr. McAvoy’s death was the sequela of his alleged
vaccine-related injury.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on behalf of Mr. McAvoy as a result of his alleged condition.
6. Respondent denies that the flu vaccine caused Mr. McAvoy’s alleged cellulitis or any
other injury, and further denies that his death was a sequelae of an alleged vaccine-related 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(a)(1), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $86,599.04 in the form of a check payable to petitioner as personal
representative of the estate of Daniel W. McAvoy. 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. Payments made pursuant to paragraph 8 of this Stipulation, and any amount awarded
pursuant to paragraph 9, will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the
availability of sufficient statutory funds.
12. Petitioner represents that she presently is, or within 90 days of the date of Judgment
will become, duly authorized to serve as the Personal Representative of the Estate of Daniel W.
McAvoy under the laws of the State of Arizona. No payments pursuant to this Stipulation shall
be made until petitioner provides the Secretary with documentation establishing her appointment
as the Personal Representative of the Estate of Daniel W. McAvoy. If petitioner is not
authorized by a court of competent jurisdiction to serve as the Personal Representative of the
Estate of Daniel W. McAvoy 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 Personal Representative of the Estate of Daniel W. McAvoy upon
submission of written documentation of such appointment to the Secretary.
13. In return for the payments described in paragraph 8, and any amount awarded
pursuant to paragraph 9, petitioner, in her individual capacity, and as the Personal Representative
of the Estate of Daniel W. McAvoy, on behalf of the Estate and Mr. McAvoy’s 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. § 300 aa-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 Mr. McAvoy resulting from, or alleged to have resulted from, the flu vaccine
administered on October 12, 2016, as alleged in a Petition filed on March 8, 2019, in the United
States Court of Federal Claims as petition No. 19-357V.
14. If the special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the United States 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.
15. 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. There
is absolutely no agreement on the part of the parties hereto to make any payment or 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.
16. 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 Mr. McAvoy’s alleged
cellulitis or any other injury or his death.
17. All rights and obligations of petitioner in her capacity as the Personal Representative
of the Estate of Daniel W. McAvoy shall apply equally to petitioner’s heirs, executors,
administrators, successors, and/or assigns.
END OF STIPULATION
Respectfully submitted,
PETITIONER:
To XM rey)
PATRICIA L. MCAVOY
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
ANDREW D. DOWNING a GATHARINE E. REEVES
VANCOTT & TALAMANTE, PLLC Deputy Director
3030 N. Third Street Torts Branch
Suite 790 Civil Division
Phoenix, AZ 85012 U. S. Department of Justice
Tel: (602) 257-9160 P. O. Box 146
adowning@vancotttalamante.com Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH AND RESPONDENT:
HUMAN SERVICES: 4 Oe din & Ban
CALF Dube Whahlar, PN'Se, fer by ( Chourd i
TAMARA OVERBY aide GANGI
Acting Director, Division of Senior Trial Attorney
Injury Compensation Programs (DICP) Torts Branch, Civil Division
Healthcare Systems Bureau U.S. Department of Justice
U.S. Department of Health P.O. Box 146
and Human Services Benjamin Franklin Station
5600 Fishers Lane Washington, D.C. 20044-0146
Parklawn Building, Stop-08N146B Tel: (202) 919-6599
Rockville, MD 20857 claudia.gangi@usdoj.gov
Dated: ALT) 20