Not for Publication
DECISION AWARDING DAMAGES1
LAURA D. MILLMAN, Special Master.
On June 18, 2018, the parties filed the attached stipulation in which they agreed to settle this case and described the settlement terms. Petitioner alleges that she suffered acute disseminated encephalomyelitis ("ADEM") that was caused by her November 3, 2013 receipt of influenza ("flu") vaccine. Respondent denies that the flu vaccine caused petitioner's ADEM or any other injury. 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. a lump sum of $125,000.00, in the form of a check payable to petitioner representing compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a); and
b. a lump sum of $8,685.48, representing reimbursement of a State of Indiana Medicaid lien for services rendered on behalf of petitioner in the form of a check payable jointly to petitioner and
Discovery Health Partners o/b/o MDWise
MDWise Health Plan
c/o Discovery Health Partners
Two Pierce Place
Suite 1900
Itasca, IL 60143
Attn: Mr. Adam P. Stone
AStone@DiscoveryHealthPartners.com
MDWise File Number: 824554
TIN: 26-3000153
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. Samantha Krieg, petitioner, 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 petitioner'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 a flu vaccination on or about November 3, 2013.
3. The vaccine was administered within the United States.
4. Petitioner alleges that the flu vaccine caused her to develop acute disseminated encephalomyelitis ("ADEM"). Petitioner further alleges that she experienced the residual effects of this injury for more than six months.
5. Petitioner represents that them has been no prior award or settlement of a civil action for damages as a result of her condition.
6. Respondent denies that the flu vaccine administered on or about November 3, 2013, is the cause of petitioner's alleged ADEM and/or any other injury or her current 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 § 300aa-21(a)(1), the Secretary of Health and Human Services will issue the following vaccine compensation payments:
a. A lump sum of $1 25,000.00 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); and
b. A lump sum of $8,685.48, which amount represents reimbursement of a State of Indiana Medicaid lien, in the form of a check payable jointly to petitioner and:
Discovery Health Partners o/b/o MDWise
MDWise Health Plan
c/o Discovery Health Partners
Two Pierce Place
Suite 1900
Itasca, IL 60143
Attn: Mr. Adam P. Stone
AStone@DiscoveryHealthPartners.com
MDWise File Number: 824554
TIN: 26-3000153
Petitioner agrees to endorse this check to Discovery Health Partners o/b/o MDWise.
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 her 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. 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, and past unreimbursable expenses, 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 and/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, [ass 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 or about November 3, 2013, as alleged by petitioner in a petition for vaccine compensation filed on or about September 29, 2016, in the United States Court of Federal Claims as petition No. 16-1226V.
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, 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 fiwther 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 alleged ADEM, or any other injury or her current condition.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.
