Boschert v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
SONDRA BOSCHERT, as the *
Personal Representative of the
* No. 15-883V
Estate of ELMER JOSEPH * Special Master Christian J. Moran
BOSCHERT, JR, *
Petitioner,
*
*
v. * Filed: February 16, 2016
*
* Stipulation; influenza (“flu”) vaccine;
SECRETARY OF HEALTH * Guillain-Barré Syndrome (“GBS”);
AND HUMAN SERVICES, * attorneys’ fees and costs.
*
Respondent. *
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Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner;
Ryan D. Pyles, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
UNPUBLISHED DECISION1
On February 11, 2016, the respondent filed a joint stipulation concerning the
petition for compensation filed by Sondra Boschert, as personal representative of
the estate of Elmer Joseph Boschert, Jr. In her petition, Ms. Boschert alleges that
the influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the
“Table”), 42 C.F.R. §100.3(a), and which Elmer J. Boschert, Jr. received on or
about September 11, 2013, caused him to suffer Guillain-Barré Syndrome
(“GBS”). Petitioner further alleges that the development of GBS resulted in Elmer
J. Boschert, Jr.’s death. Petitioner represents that there has been no prior award or
settlement of a civil action for damages on behalf of the Estate of Elmer J.
Boschert, Jr. as a result of his death.
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), a party has 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
Respondent denies that Elmer J. Boschert Jr.'s death was caused-in-fact by
his influenza vaccination, and denies that the vaccine caused any other injury.
Nevertheless, the parties agree to the joint stipulation, attached hereto as
“Appendix A.” The undersigned finds said stipulation reasonable and adopts it as
the decision of the Court in awarding damages and attorneys’ fees and costs, on the
terms set forth therein.
Compensation awarded in that stipulation includes:
A. A lump sum payment of $100,000.00, in the form of a check payable
to petitioner, Sondra Boschert, as legal representative of the Estate of
Elmer Joseph Boschert, Jr. This amount represents compensation
for all damages that would be available under 42 U.S.C. §300aa-
15(a); and
B. A lump sum of $19,544.47, in the form of a check payable jointly to
petitioner and petitioner’s attorney, Andrew D. Downing, of Van
Cott & Talamante, PLLC, for attorneys’ fees and costs available
under 42 U.S.C. §300aa-15(e), and, in compliance with General
Order #9, no out-of-pocket expenses were incurred by petitioner in
proceeding on the petition.
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 15-883V according to this decision
and the attached stipulation.2
Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.