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Andrews v. Secretary of Health and Human Services, 17-331V. (2018)

Court: United States Court of Federal Claims Number: infdco20180705d15 Visitors: 9
Filed: May 21, 2018
Latest Update: May 21, 2018
Summary: Not to be published DECISION AWARDING DAMAGES 1 BRIAN H. CORCORAN , Special Master . On March 10, 2017, Laurie Andrews filed a petition seeking compensation under the National Vaccine Injury Compensation Program ("Vaccine Program"). 2 Petitioner alleges that she suffered from Guillain-Barr Syndrome ("GBS") as a result of her November 28, 2015 influenza ("flu") vaccine. Petitioner further alleges that she has experienced the residual effects of her GBS for more than six months. Respond
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Not to be published

DECISION AWARDING DAMAGES1

On March 10, 2017, Laurie Andrews filed a petition seeking compensation under the National Vaccine Injury Compensation Program ("Vaccine Program").2 Petitioner alleges that she suffered from Guillain-Barré Syndrome ("GBS") as a result of her November 28, 2015 influenza ("flu") vaccine. Petitioner further alleges that she has experienced the residual effects of her GBS for more than six months.

Respondent denies that the flu vaccine caused Petitioner's GBS or any other injury. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed on May 21, 2018) that the issues before them could be settled, and that a decision should be entered awarding Petitioner compensation.

I have reviewed the file, and based upon that review, 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 $150,000.00, in the form of a check payable to Petitioner; • $13,381.62 in the form of a check payable jointly to Petitioner and Michigan Department of Health and Human Services Third Party Liability Division P.O. Box 30053 Lansing, MI 48909 Re: Medicaid ID # 0039882983; and • $177.20 in the form of a check payable jointly to Petitioner and Priority Health Choice c/o Jaime Mosqueda 1231 East Beltline NE Mailstop 1340 Grand Rapids, MI 49525 Re: Laurie Andrews

Stipulation ¶ 8. These amounts represent compensation for all damages that would be available under Section 15(a) of the Act.

I approve a Vaccine Program award in the requested amounts set forth above to be made as indicated. 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.

STIPULATION

The parties hereby stipulate to the following matters:

1. Laurie Andrews, petitioner, filed a petition for vaccine compensation under the National Vaccine injury Compensation Program, 42 U.S.C. §300aa-10 et seq. (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to Ms. Andrews's receipt of the influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R_ § 100.3(a).

2. Petitioner received the flu immuni7ntion on November 28, 2015.

3. The vaccine was administered within the United States.

4. Petitioner alleges that the flu vaccine caused her to suffer Guillian-Barré Syndrome ("GBS").

5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition.

6. Respondent denies that the flu vaccine caused petitioner to suffer CiBS or any other injury or condition.

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 payments:

1) A lump sum of $150,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 2) A lump sum of $13,381.62 in the form of a check payable jointly to petitioner and Michigan Department of Health and Human Services Third Party Liability Division P.O. Box 30053 Lansing, MI 48909 Re: Medicaid ID# 0039882983

Petitioner agrees to endorse this payment to the Michigan Department of Health and Human Services.

3) A lump sum payment of $177.20 in the form of a check payable jointly to petitioner and Priority Health Choice c/o Jaime Mosqueda 1231 East Beltline NE Mailstop 1340 Grand Rapids, MI 49525 Re: Laurie Andrews Petitioner agrees to endorse this payment to Priority Health Choice.

9. As soon as practicable after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper arid 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 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.

11. Payments made pursuant to paragraph 8 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, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner 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. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her 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. § 300aa-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 petitioner resulting from, or alleged to have resulted from, the flu vaccination administered on November 28, 2015, as alleged by petitioner in a petition for vaccine compensation filed on or about March 10. 2017, in the United States Court of Federal Claims as petition No. 17-331V.

14. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties.

15. 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.

16. 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 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.

17. 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 petitioner's GBS or any other injury or condition.

18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

FootNotes


1. Although this Decision has been formally designated "not to be published," it will nevertheless be posted on the Court of Federal Claims's 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 in its present form will be available. 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").
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.
Source:  Leagle

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