UNPUBLISHED
DECISION ON JOINT STIPULATION1
THOMAS L. GOWEN, Special Master.
On June 3, 2013, Shelly Crane-McDonald filed a petition pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to 34 (2012). After Ms. Crane-McDonald's death, her spouse, Tracy McDonald ("petitioner") filed an amended petition as the legal representative of Ms. Crane-McDonald's estate. Petitioner alleged that as a result of receiving an influenza ("flu") vaccine on October 20, 2011, Ms. Crane-McDonald developed a demyelinating disorder, and that Ms. Crane-McDonald's death was the sequela of her alleged vaccine-related injury. Stipulation at Preamble, ¶¶ 2, 4.
On November 17, 2016, the parties filed a stipulation in which they state that a decision should be entered awarding compensation. Respondent denies that the flu vaccine caused Ms. Crane-McDonald's alleged demyelinating disorder, any other injury, or her death. Stipulation at ¶ 6. 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 in compensation:
a. A lump sum of $225,000.00 in the form of a check payable to petitioner as Legal Representative of the Estate of Shelly Crane-McDonald. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
Id. at ¶ 8.
The undersigned approves the requested amount for petitioner's compensation.
Accordingly, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of the parties' stipulation.3
IT IS SO ORDERED.
STIPULATION
The parties hereby stipulate to the following matters:
1. Shelly Crane-McDonald ("Ms. Crane-McDonald") filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to Ms. Crane-McDonald'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). After Ms. Crane-McDonald's death, her spouse, Tracy McDonald ("Petitioner"), filed an amended petition as the legal representative of the estate of Ms. Crane-McDonald.
2. Ms. Crane-McDonald received the flu vaccine on October 20, 2011.
3. The vaccine was administered within the United States.
4. Petitioner alleges that as a result of receiving the flu vaccine, Ms. Crane-McDonald sustained a vaccine-related injury diagnosed as a demyelinating disorder. Ms. Crane-McDonald passed away on October 30, 2014. Petitioner further alleges that Ms. Crane-McDonald'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. Crane-McDonald as a result of her alleged condition or her death.
6. Respondent denies that the flu vaccine caused Ms. Crane-McDonald's alleged demyelinating disorder, 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 $225,000.00 in the form of a check payable to petitioner as Legal Representative of the Estate of Shelly Crane-McDonald. 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. 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 he presently is, or within 90 days of judgment will become, duly authorized to serve as Legal Representative of the Estate of Shelly Crane-McDonald, under the laws of the State of North Carolina. No payments pursuant to this Stipulation shall be made until petitioner provides the Secretary with documentation establishing his appointment as Legal Representative of the Estate of Shelly Crane-McDonald. If petitioner is not authorized by a court of competent jurisdiction to serve as Legal Representative of the Estate of Shelly Crane-McDonald 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 Shelly Crane-McDonald, 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 his individual capacity, and as the Legal Representative of the Estate of Shelly Crane-McDonald, on behalf of Ms. Crane-McDonald's Estate and 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 Ms. Crane-McDonald resulting from, or alleged to have resulted from, the flu vaccine administered on October 11, 2011, as alleged in a Petition filed on June 3, 2013, in the United States Court of Federal Claims as petition No. 13-371 V.
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. Crane-McDonald's alleged demyelinating disorder, any other injury, or her death.
17. All rights and obligations of petitioner in his capacity as Legal Representative of the Estate of Shelly Crane-McDonald, shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.
