Judges: Nora Beth Dorsey
Filed: Mar. 25, 2016
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: March 4, 2016 Case No. 13-766V * * * * * * * * * * * * * * * UNPUBLISHED I.H., a minor, by his mother * ALESKIS BROWN, * Chief Special Master Dorsey * Petitioner, * Joint Stipulation on Damages; * Influenza (“flu”) Vaccine; v. * Narcolepsy; Cataplexy; Hypersomnia; * Lack of Coordination/Ataxia. SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * Michael G. McLaren, Black McLaren,
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: March 4, 2016 Case No. 13-766V * * * * * * * * * * * * * * * UNPUBLISHED I.H., a minor, by his mother * ALESKIS BROWN, * Chief Special Master Dorsey * Petitioner, * Joint Stipulation on Damages; * Influenza (“flu”) Vaccine; v. * Narcolepsy; Cataplexy; Hypersomnia; * Lack of Coordination/Ataxia. SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * Michael G. McLaren, Black McLaren, ..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 4, 2016
Case No. 13-766V
* * * * * * * * * * * * * * * UNPUBLISHED
I.H., a minor, by his mother *
ALESKIS BROWN, * Chief Special Master Dorsey
*
Petitioner, * Joint Stipulation on Damages;
* Influenza (“flu”) Vaccine;
v. * Narcolepsy; Cataplexy; Hypersomnia;
* Lack of Coordination/Ataxia.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * *
Michael G. McLaren, Black McLaren, et al., P.C., Memphis, TN, for petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, D.C., for respondent.
DECISION1
On October 2, 2013, Aleskis Brown (“petitioner”) filed a petition on behalf of her minor
son, I.H., under the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -
34 (2012). Petitioner alleges that I.H. developed narcolepsy, cataplexy, hypersomnia, lack of
coordination/ataxia, and other neurologic and physical impairments as a result of receiving the
influenza (“flu”) vaccination on December 10, 2012. Petition at 1. The undersigned determined
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling 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)). 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
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.
that the onset of petitioner’s condition began between January 6 and 8, 2013. See Ruling
Regarding Findings of Fact dated August 4, 2015, (ECF No. 45).
On March 4, 2016, the parties filed a stipulation in which they stated that a decision
should be entered awarding compensation.
Respondent denies that the influenza vaccine caused I.H.’s alleged injuries.
Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The
undersigned finds the stipulation reasonable and adopts it as the decision of the Court in
awarding damages, on the terms set forth therein.
The parties stipulate that petitioner shall receive the following compensation:
A lump sum in the amount of $550,000.00, in the form of a check payable to
petitioner, Aleskis Brown, as guardian of I.H.’s estate. This amount represents compensation
for all damages that would be available under 42 U.S.C. § 300aa-15(a). Stipulation dated March
4, 2016, (ECF No. 58) at ¶ 8.
The undersigned approves the requested amount for petitioner’s 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
the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’
stipulation. 3
IT IS SO ORDERED.
s/ Nora Beth Dorsey
Nora Beth Dorsey
Chief 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.
I N THE UNITED STATES COURT OF FEDERAL CLAIM S
OFFICE OF SPECIAL MASTERS
)
I.I I.. a mino r. by his mother )
A L ES K I BROW . )
)
Petitio ner. ) o. 13-766V EC F
)
V. ) Chief pecia l M aster Dorsey
)
EC RETA RY OF H EA L TH )
A D HUMA SE RV ICES. )
)
Respondent. )
- - --------- )
STIPULAT ION
The partie hereby stipul ate to the fo llowin g matters:
I. Petitioner. A lcski s Brown. fi led a petiti on fo r vaccine compensation on behalfof her
on. I H. under the ational V acc ine Injury Compensati on Program. 42 U. .C. § 300aa- I 0 to 34
(the ··vacc ine Program .. ). The petition eeks compensati on for inj uri es alleged ly related to IH ·s
receipt o f the influenza ("" flu ..) vacc ine. w hich is contained in the V accine Inju ry Table (the
·T able.. ). 42 C.F .R. § I 00.3(a).
2. IH received the flu vaccine on D ecember I 0. 20 12.
3. The vaccine was admini stered w ithin the United States.
4. Petitioner alleges that. as a re ult of receiv in g th e vacc ine. IH suffered from
narco lepsy. cataplexy. hyper omnia. lack o f coo rdinati on/atax ia. and neurologic and/or other
physica l impairm ents. and that II I experienced the residual effect o f these injuries for more than
six months.
5. Petitioner represent s that there has been no pri or award or settlement o f a civ il acti on
for damages as a result o f the alleged injury .
6. Respondent denies that the vaccines caused or significan tly aggravated I H · s al Ieged
medical conditio n and injuries. any of hi ongoing symptoms. or any other injury.
7. Mainta ini ng thei r above-stated positions. the parti es nevertheless now agree that the
issues bet\\een them shall be settled and that a decision should be entered award ing the
compensatio n described in paragraph 8 o l" th is Sti pu lation.
8. As soon as prac ticab le after an entry o fjudgmcnt renecting a deci sion consistent
w ith the terms o f thi s Stipu lation. and after petit ioner has filed an election to rece ive
compensation pursuant to 42 U . .C. ~ 300aa-2 I (a)( I ). the Secretary of H ealth and I luman
Serv ices w ill issue the fo llowing vacc ine compensatio n pay ment:
A lum p sum o f$5 50.000.00. in the form of a check payab le to peti tioner as
g uardian o f 11-l" s estate.
T he above amounts rep resent compensati on fo r al l damages that would be availab le under 42
U.S.C. * 300aa- 15(a) .
9. As soon as practicable after the entry of judgment on en ti tlement in thi s case. and
after petit ioner has fil ed both a proper and timely electi on to receive compensation pursuant to
42 U .S.C. *300aa-2 I (a)( I ). and an applica tion. the parti es wi 11 submit to further proceed in gs
before the special m aster to award reasonable attorneys · fee and costs incurred in proceeding
upon thi s petition.
I 0. Petitioner and her attorney represent that compensation to be provided pursuant to
th is Sti pulation i not for any items or servi ces for whi ch the Program is not primarily l iab le
under 42 U .S.C. * 300aa- I 5(g). to the exten t that payment has been made or can rca onably be
expected to be made under any State compensati on programs, insurance po licies. Federa l or
2
late health benefits programs (other than Title X IX o f the Social Security A ct (42 U.S.C.
§ 1396 et seq.)). or by entities that provide hea lth services on a pre-paid basis.
11. Payments made pursuant to paragraph 8 o f thi s Stipulati on. and any amount
awarded pursuant to paragraph 9 o f thi s tipulation. w ill be made in accordance w ith 42 U.S.C.
§ 300aa-15( i). subject to the availabil ity o r sufficient statutory fund s.
12. The parties and their attorneys further agree and stipul ate that. except fo r any award
for attorneys· lees and litigati on costs. the money provided pursuant to thi s Stipu lati on wi ll be
used so lel y for the benefit of I 1-1. as contempl ated by a tri ct constructi on o f 42 U. .C.
§ 300aa- l 5(a) and (d). and subject to the conditions o f 42 U.S.C. § 300aa- I 5(g) and (h).
13. Petitioner represents that she pre ent ly is. or wi thin 90 days o f the date of
judgment w ill become, dul y authori zed to serve as guardi an o f 11-l"s estate under the laws
o f the State o f Tennessee. No payments pursuant to thi s tipulati on shall be made
until petitioner provides the ecretary w ith documentati on establishing her appointment as
guardian o f I H · s estate. Ir petitioner is not authori zed by a court o f competent
j uri diction to serve as guardian of the estate o f IH at the time a payment pursuant to thi s
Stipulation is to be made. any such payment shall be paid to the party o r parties appo inted by a
court of competent juri sdiction to serve a guardi an o f the estate o f I H upon submi ssion o f
w ritten documentation o f such appointment to the Secretary.
14. In return for the payments described in paragraphs 8 and 9. petitioner. in her
indi vidual capac ity. as legal representati ve o f IH. and on behalf o f her elf. IH, and thei r heirs.
executors. administrato rs. successors o r assigns. docs foreve r irrevocably and unconditiona l ly
release. acquit and discha rge the United tates and the ecretary o r Hea lth and Human Serv ices
from any and all actions. causes o f action ( including agreements. judgments. claims, damages,
3
loss o f services. ex penses and al I demands o f whatever kind or nature) that have been brought.
could have been brou ght. or could be timely brought in the Court of Federal Claims. under the
ational Vaccine Injury Compensatio n Program. 42 U.S.C. § 300aa-I 0 et seq .. on account of. or
in any way grow ing out of: any and al I known or unknown. suspected or unsuspected personal
injuries to or death of IH resulting from. or alleged to have resulted from. the vaccines
admini stered on December I 0. 20 12. as alleged by petiti oner in a pet ition for vaccine
compensation !i led on or about October 2. 20 13. in the United States Court of Federal Claims as
petit ion No. 13-766V.
15. I f IH should d ie pri or to entry of judgment. thi s agreemen t shall be voidable upon
proper notice to the Court on behal r of either or both o f the parti es.
16. If the special master fai ls to issue a dec ision in compl ete conformity wi th the terms
of thi s ti pulatio n or if the Court of Federal Claims fails to enter judgment in conformity with a
dec ision that is in complete con formit y w ith the term s o f thi s Stipulat ion, then the parties·
settlement and thi s St ipulation shal l be voidab le at the sole di scretion o f either party.
17. Thi s Stipulati on expresses a full and compl ete negotiated sett lement of l iab il ity and
damages claim ed under the at ional Chi ldhood Vaccine Injury Act of 1986. as amended, except
as otherw ise noted in paragraph 9 above. T here is abso lute ly no agreement on the part of the
parties hereto to make any payment or to do any act or thing other than is herei n expressly stated
and clearl y agreed to. T he parti es further agree and understand that the award descri bed in th is
stipul ation may reflect a compromi se of the parti es· respecti ve positions as to li ability and/or
amou nt of damages. and further. that a change in the nature o f the inj ury or condition or in the
items of compensation sought. is not grounds to modify or rev ise th is agreement.
18. T hi s Stipulation shall not be construed as an ad miss ion by the Un ited States or the
4
Secretary o f Hea lth and Human ervices that the vaccines either caused or signi fican tl y
aggravated IH" s alleged medical conditi on o r any other injury.
19. A ll ri ghts and obligati ons o f petitioner hereunder shall apply equally to pet itioner' s
heirs. executors. ad ministrato rs. successor s. and/or assigns.
END OF STIPULA TION
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Rcspoctfully submitted,
PETITIO NER:
AITORN RY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITJONER: OF 11lE AITORN EY GENERA L:
Jl# ~~
~ !£~~-~
MICHAEL G:MCiA RE VINCENT J. MA ANOSKl
Blaclc McLaren Jones Ryllmd & Griff;/~ · Deputy Director
530 Oak Court Drive, Suite 360 Torn Branch
Memphil, TN 38117 Civil Division
(901) 762--0535 U.S. Dcpa.rtmoot of Jwtice
P.O. Box 146
Benjamin Fmnklin Station
W ashiu.gton, DC 2Q044.01 46
AUTHORIZ..ED REPRES ENTATI VE ATTORN EY OF RECORl > FOR
OFTHES ECRETA RYOFH EALTB RESPON DENT:
AND HUMAN SK CES:
DARRYL R. WISHAR D
Acting Director, Division of Injury Smiior Trial Attorney
Compensation ProiJ1UDB (DlcP) Tot1s Bnmch
Healthcare Systems Bureau Civil Division
U.S. Departtncut of Health and U.S. Departme nt of Justice
Human Servicea P.O. Sox 146
5600 Fillher& Lane Benjamin Franklin Station
Padc.Ulwn Building, Mail Stop 08Nl46B W11shingl0n. DC 20044--0146
Rockville. MD 20857 {202) 616-4357
Doted' fa 1+lrh
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