Judges: Brian H. Corcoran
Filed: Dec. 23, 2019
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1359V Filed: October 22, 2019 UNPUBLISHED STEFANIE BENNETT, on behalf of the ESTATE OF SHAWN GESSNER,, Petitioner, Special Processing Unit (SPU); Joint v. Stipulation on Damages and Attorney’s Fees; Influenza (Flu) SECRETARY OF HEALTH AND Vaccine; Guillain-Barre Syndrome HUMAN SERVICES, (GBS) Respondent. Daniel A Singer, Shamberg, Johnson & Bergman, Chtd., Kansas City, MO, for petitioner. Voris Edward Johnson, U.S. Dep
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1359V Filed: October 22, 2019 UNPUBLISHED STEFANIE BENNETT, on behalf of the ESTATE OF SHAWN GESSNER,, Petitioner, Special Processing Unit (SPU); Joint v. Stipulation on Damages and Attorney’s Fees; Influenza (Flu) SECRETARY OF HEALTH AND Vaccine; Guillain-Barre Syndrome HUMAN SERVICES, (GBS) Respondent. Daniel A Singer, Shamberg, Johnson & Bergman, Chtd., Kansas City, MO, for petitioner. Voris Edward Johnson, U.S. Depa..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1359V
Filed: October 22, 2019
UNPUBLISHED
STEFANIE BENNETT, on behalf of the
ESTATE OF SHAWN GESSNER,,
Petitioner, Special Processing Unit (SPU); Joint
v. Stipulation on Damages and
Attorney’s Fees; Influenza (Flu)
SECRETARY OF HEALTH AND Vaccine; Guillain-Barre Syndrome
HUMAN SERVICES, (GBS)
Respondent.
Daniel A Singer, Shamberg, Johnson & Bergman, Chtd., Kansas City, MO, for petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Corcoran, Chief Special Master:
On September 5, 2018, petitioner filed a petition on behalf of decedent, Shawn
Gessner, for compensation under the National Vaccine Injury Compensation Program,
42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that Mr. Gessner
suffered Guillain-Barré syndrome (“GBS”) and died following his receipt of an influenza
(“flu”) vaccination on September 26, 2017. Petition at 1; Stipulation, filed October 17,
2019, at ¶¶ 2, 4. Respondent states that “petitioner is entitled to compensation under
the terms of the Vaccine Program for Mr. Gessner’s GBS and subsequent death.”
Stipulation at ¶ 7.
1I intend to post this decision on the United States Court of Federal Claims' website. This means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of
which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified
material fits within this definition, I will redact such material from public access. Because this unpublished
decision contains a reasoned explanation for the action in this case, I am required to post it on the United
States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. §
3501 note (2012) (Federal Management and Promotion of Electronic Government Services).
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
On October 17, 2019, the parties filed the attached joint stipulation, stating that a
decision should be entered awarding compensation and attorneys’ fees.3 I find the
stipulation reasonable and adopt it as the decision of the Court in awarding damages
and attorney’s fees, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the I award the following
compensation:
• A lump sum of $451,765.36, consisting of $195,000.00 for pain and
suffering, $6,765.36 in past unreimbursed expenses, and the
$250,000.00 statutory death benefit, in the form of a check payable to
petitioner, Stefanie Bennett, as Special Administrator of the estate of
Shawn Gessner. Stipulation at ¶ 8. This amount represents compensation
for all items of damages that would be available under § 15(a). Id.; and
• $20,000.00 for petitioner’s attorneys’ fees and costs, in the form of a
check made payable jointly to petitioner and her counsel, Daniel A.
Singer.
I approve the requested amount for petitioner’s compensation and attorneys’
fees. In the absence of a motion for review filed pursuant to RCFC Appendix B, the
clerk of the court is directed to enter judgment in accordance with this decision.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3The attached stipulation was filed prior to petitioner’s unopposed motion to correct the captioned
spelling of her first name. Respondent filed a status report on October 17, 2019, confirming that the
corrected spelling of petitioner’s name should be adopted for purposes of entering judgment.
Accordingly, this decision is issued adopting the amendment.
4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
STEPHANIE BENNETT on behalf of )
the estate of SHAWN GESSNER, )
)
Petitioner, )
) No. 18-1359V (ECF)
v. ) Chief Special Master Dorsey
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
STIPULATION
The parties hereby stipulate to the following matters:
1. Stephanie Bennett (“petitioner”), on behalf of the estate of Shawn Gessner (“Mr.
Gessner”), 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 Mr. Gessner’s injuries and death following his 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. Mr. Gessner received a flu vaccine on September 26, 2017.
3. The vaccine was administered within the United States.
4. Mr. Gessner subsequently sustained the first symptom or manifestation of onset of
Guillain-Barré syndrome (“GBS”) within the time period set forth in the Table, and later died as
a result of his GBS.
5. There is not a preponderance of the evidence demonstrating that Mr. Gessner’s
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GBS and subsequent death were due to a factor unrelated to his September 26, 2017 flu vaccine.
6. Petitioner represents that there has been no prior award or settlement of a civil
action for damages on behalf of Mr. Gessner as a result of his GBS or death.
7. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine
Program for Mr. Gessner’s GBS and subsequent death. Therefore, 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:
a. A lump sum of $451,765.36, consisting of $195,000.00 for
pain and suffering, $6,765.36 in past unreimbursed
expenses, and the $250,000.00 statutory death benefit, in
the form of a check payable to petitioner, Stephanie
Bennett, as Special Administrator of the estate of Shawn
Gessner. This amount represents compensation for all
damages that would be available under 42 U.S.C. § 300aa-
15(a); and,
b. $20,000.00 for petitioner’s attorneys’ fees and costs, in the
form of a check made payable jointly to petitioner and her
counsel, Daniel A. Singer of Shamberg, Johnson, &
Bergman, Chtd., which amount is not an unreasonable
amount to have been incurred for proceedings in this case
to date. Respondent’s lack of objection to the amount
sought in this case should not be construed as an admission,
concession, or waiver as to the hourly rates requested, the
number of hours billed, or the other litigation-related costs.
9. 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
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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.
10. Payments made pursuant to paragraph 8 of this Stipulation will be made in
accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds.
11. Petitioner represents that she presently is, or within 90 days of the date of
judgment will become, duly authorized to serve as Special Administrator of Mr. Gessner’s estate
under the laws of the State of Kansas. No payment pursuant to this Stipulation shall be made
until petitioner provides the Secretary with documentation establishing her appointment as
Special Administrator of Mr. Gessner’s estate. If petitioner is not authorized by a court of
competent jurisdiction to serve as Special Administrator of the estate of Shawn Gessner 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 Special Administrator
of the estate of Shawn Gessner upon submission of written documentation of such appointment
to the Secretary.
12. In return for the payments described in paragraph 8, petitioner, in her individual
capacity and as Special Administrator of the estate of Mr. Gessner, and on behalf of the estate’s
heirs, executors, administrators, successors or assigns, does forever irrevocably and
unconditionally release, acquit and discharge the Secretary of Health and Human Services and
the United States of America 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. §
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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, Mr. Gessner resulting from, or alleged
to have resulted from, the influenza vaccine administered on September 26, 2017, as alleged by
petitioner in a petition for vaccine compensation filed on or about September 5, 2018, in the
United States Court of Federal Claims as petition No. 18-1359V.
13. 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.
14. This Stipulation expresses a full and complete negotiated settlement of liability
and damages claimed under the National Vaccine Injury Act of 1986, as amended. 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.
15. All rights and obligations of petitioner, in her individual capacity as the Special
Administrator of the estate of Shawn Gessner, hereunder shall apply equally to petitioner’s heirs,
executors, administrators, successors and/or assigns.
END OF STIPULATION
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Respectfully submitted,
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
~/-
DANIEL A. SINGER RINE E. REEVES
Shamberg, Johnson, & Bergman, Chtd.
2600 Grand Boulevard, Suite 550
Kansas City, MO 64108 Civil Division
(816) 474-0004 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
tuaA.d s~~~-1-
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs (DICP) Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 08N 146B Washington, DC 20044-0146
Rockville, MD 20857 (202) 616-4136
Dated: I D / r1 / f °l
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