Not to be Published
DECISION AWARDING DAMAGES1
LAURA D. MILLMAN, Special Master.
On May 10, 2019, the parties filed the attached stipulation in which they agreed to settle this case and described the settlement terms. Petitioner alleges that Judith Celic suffered from Chronic Inflammatory Demyelinating Polyneuropathy ("CIDP") that was caused by her receipt of influenza ("flu") vaccine on October 16, 2014. Petitioner further alleges that Ms. Celic experienced the residual effects of this injury that led to her death on May 26, 2018. Respondent denies that the flu vaccine caused petitioner to suffer CIDP or any other injury and further denies that the flu vaccine caused Ms. Celic's death. Nonetheless, the parties agreed to resolve this matter informally.
The undersigned finds the terms of the stipulation to be reasonable. The court hereby adopts the parties' said stipulation, attached hereto, and awards compensation in the amount and on the terms set forth therein. Pursuant to the stipulation, the court awards a lump sum of $255,000.00, representing compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a) (2012). The award shall be in the form of a check for $255,000.00 made payable 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.2
IT IS SO ORDERED.
STIPULATION
The parties hereby stipulate to the following matters:
1. Judith Celic ("Ms. Celic") filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq. (the "Vaccine Program"). Upon Ms. Celic's death, Lawrence Celic was substituted as petitioner. The petition seeks compensation for injuries and death allegedly related to Ms. Celic'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. Ms. Celic received the flu vaccine on October 16, 2014.
3. The vaccine was administered within the United States.
4. Petitioner alleges that as a result of receiving the flu vaccine, Ms. Celic suffered Chronic Inflammatory Demyelinating Polyneuropathy ("CIDP") and experienced the residual effects of this condition for more than six months. Ms. Celic died on May 26, 2018. Petitioner further alleges that Ms. Celic's death was the sequela of her 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 Ms. Colic as a result of her alleged vaccine-related condition or her death.
6. Respondent denies that the flu vaccine caused Ms. Celic's alleged CIDP, any other injury, or her death.
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 $255,000.00 in the form of a check payable to petitioner as Personal Representative of the Estate of Judith Celic. 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 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. Payment 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 he presently is, or within 90 days of the date of judgment will become, duly authorized to serve as legal representative of the Estate of Judith Celic under the laws of the State of Utah. No payments pursuant to this Stipulation shall be made until petitioner provides the Secretary with documentation establishing her appointment as legal representative of the Estate of Judith Celic. If petitioner is not authorized by a court of competent jurisdiction to serve as legal representative of the Estate of Judith Celic 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 legal representative of the Estate of Judith Celic upon submission of written documentation of such appointment to the Secretary.
13. In return for the payment described in paragraph 8, and any amount awarded pursuant to paragraph 9, petitioner, in his individual capacity, and as the Personal Representative of the Estate of Judith Celic, on behalf of Ms. Celic'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 as-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 Ms. Celic resulting from, or alleged to have resulted from, the flu vaccine administered on October 16, 2014, as alleged in a Petition filed on January 30, 2017, in the United States Court of Federal Claims as petition No. 17-139V.
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, 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 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 Ms. Celic's alleged CIDP, any other injury, or her death.
17. All rights and obligations of petitioner in his capacity as the Personal Representative of the Estate of Judith Celic shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.
