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  5. Trigueros v. Secretary of Health and Human Services, 16-1058V. (2020)

Trigueros v. Secretary of Health and Human Services, 16-1058V. (2020)

Court: United States Court of Federal Claims Number: infdco20200316668 Visitors: 21
Filed: Feb. 14, 2020
Latest Update: Feb. 14, 2020
Summary: UNPUBLISHED DECISION 1 CHRISTIAN J. MORAN , Special Master . Luis Trigueros alleged that various vaccines, including the influenza vaccine, caused him to develop Guillain-Barr syndrome. The basic facts are (1) Mr. Trigueros received the flu vaccination on October 2, 2013, and (2) Mr. Trigueros was hospitalized for GBS, starting October 21, 2013. Mr. Trigueros filed his petition on August 25, 2016. While his case was pending, the Secretary announced, on January 19, 2017, revisions to the
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UNPUBLISHED DECISION1

Luis Trigueros alleged that various vaccines, including the influenza vaccine, caused him to develop Guillain-Barré syndrome. The basic facts are (1) Mr. Trigueros received the flu vaccination on October 2, 2013, and (2) Mr. Trigueros was hospitalized for GBS, starting October 21, 2013. Mr. Trigueros filed his petition on August 25, 2016.

While his case was pending, the Secretary announced, on January 19, 2017, revisions to the Vaccine Injury Table based upon a Notice of Proposed Rule Making, issued on July 29, 2015. 80 Fed. Reg. 45131. The January 19, 2017 revisions established that flu vaccine was presumptively the cause of GBS when the GBS arose 3-42 days after the vaccination. 82 Fed. Reg. 6294. This provision is now found in the Vaccine Injury Table at 42 C.F.R § 100.3, ¶ XIV.D.

Revisions to the Vaccine Injury Table "apply only with respect to petitions for compensation under the Program which are filed after the effective date of such regulation." 42 U.S.C. § 300aa-14(c)(4). However, because the revision established a presumptive causal association between flu vaccine and GBS, the revision "significantly increase[d] the likelihood" that Mr. Trigueros would receive compensation on his claim that the flu vaccine caused him to suffer GBS. As such, Mr. Trigueros could "file a petition for such compensation not later than 2 years after the effective date of the revision." 42 U.S.C. § 300aa-16(b).

Although eligible to initiate a new case to take advantage of the Table revision, Mr. Trigueros did not. At events hosted by the Office of Special Masters, supervisors within the Department of Justice requested that petitioners who could benefit from the lookback aspect of the statute of limitations not file new cases. The filing of new cases would add an administrative burden on officials within the Department of Justice, the Department of Health and Human Services, and the Office of Special Masters.

In Mr. Trigueros's case, the Secretary acted consistently with this policy. The Secretary stated: "Recognizing that petitioner may re-file this petition and be afforded a presumption of causation under the revised Table ..., respondent will not contest entitlement to compensation in this case." Resp't's Rep., filed pursuant to Vaccine Rule 4 on Oct. 4, 2017.2 After respondent declined to oppose entitlement, the undersigned issued an Unpublished Ruling Finding Entitlement, 2017 WL 6521877 (Fed. Cl. Spec. Mstr. Oct. 17, 2017).

Following this ruling, the parties worked to determine the amount of compensation to which Mr. Trigueros is entitled. Despite the parties' good faith, the resolution of damages became protracted. Eventually, the undersigned scheduled the case for a hearing to resolve disputes about damages and directed the parties to file briefs. Order, issued July 30, 2019, ECF No. 72.

To their credit, the attorneys continued to work together. Their cooperation led to a tentative resolution to resolve the case, subject to the approval by an authorized official of the Attorney General. See order, issued Oct. 3, 2019, ECF No. 79.

On January 23, 2020, the Secretary filed a stipulation for an award signed by all parties. Paragraph 6 of the Stipulation states: "Respondent denies that the vaccines caused petitioner to suffer from GBS or any other injury or his current condition."3 Nevertheless, as recited in the remainder of the stipulation, the parties agree to the joint stipulation, attached hereto. The undersigned finds said stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

Damages awarded in that stipulation include:

1. A lump sum payment of $232,310.35, which amount represents compensation for first year life care expenses ($57,293.73), pain and suffering ($175,000.00), and past unreimbursable expenses ($16.62) in the form of a check payable to petitioner. 2. A lump sum payment of $1,163.02, which amount represents reimbursement of a New York Medical Assistance lien for services rendered on behalf of petitioner, Luis Trigueros, in the form of a check payable jointly to petitioner and New York State Department of Health, and mailed to: New York State Department of Health P.O. Box 415874 Boston, MA 02241-5874 Recovery Case # 194274 Attn: Sherry Miles Petitioner agrees to endorse this check to the New York State Department of Health. 3. An amount sufficient to purchase the annuity contract described in paragraph 10 of the signed joint stipulation, paid to the life insurance company from which the annuity will be purchased (the "Life Insurance Company"). These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 16-1058V according to this decision and the attached stipulation.4

IT IS SO ORDERED.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

LUIS TRIGUEROS, Petitioner, v. No. 16-1058V SECRETARY OF HEALTH Special Master Moran AND HUMAN SERVICES, ECF Respondent.

STIPULATION

The parties hereby stipulate to the following matters:

1. Luis Trigueros, 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 an influenza ("flu"), tetanus diphtheria ("Td"), and tetanus, diphtheria and acellular pertussis ("Tdap") vaccines, which vaccines are contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a).

2. Petitioner received his vaccinations on October 2, 2013.

3. The vaccinations were administered within the United States.

4. Petitioner alleges that he suffered from Guillain-Barré syndrome ("GBS") as a result of receiving the vaccines, and that he experienced the residual effects of this injury for more than six months.

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

6. Respondent denies that the vaccines caused petitioner to suffer from GBS or any other injury or his 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 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 $232,310.35, which amount represents compensation for first year life care expenses ($57,293.73), pain and suffering ($175,000.00), and past unreimbursable expenses ($16.62) in the form of a check payable to petitioner; b. A lump sum of $1,163.02, which amount represents reimbursement of a New York State Medical Assistance lien for services rendered on behalf of petitioner, Luis Trigueros, in the form of a check payable jointly to petitioner and New York State Department of Health, and mailed to: New York State Department of Health P.O. Box 415874 Boston, MA 02241-5874 Recovery Case #: 194274 Attn: Sherry Miles Petitioner agrees to endorse this check to the New York State Department of Health. c. An amount sufficient to purchase the annuity contract described in paragraph 10 below, paid to the life insurance company from which the annuity will be purchased (the "Life Insurance Company").

These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

9. The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from two of the following rating organizations:

a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s; b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa; c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or AAA; d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA, AA+, or AAA.

10. The Secretary of Health and Human Services agrees to purchase an annuity contract from the Life Insurance Company for the benefit of petitioner, Luis Trigueros, pursuant to which the Life Insurance Company will agree to make payments periodically to petitioner as follows for all other damages that would be available under 42 U.S.C. § 300aa-15(a).

a. For future unreimbursable Medicare Advantage, Medicare Part D, Neurologist, and Gabapentin expenses, beginning on the first anniversary of the date of judgment, an annual amount of $901.96 to be paid up to the anniversary of the date of judgment in year 2023. Then, on the anniversary of the date of judgment in year 2023, a lump sum of $933.00. Thereafter, beginning on the anniversary of the date of judgment in year 2024, an annual amount of $758.00 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of five percent (5%), compounded annually from the date of judgment. b. For future unreimbursable Vitamin B-12, Tylenol, Motrin, Physical Therapy, and Counselor expenses, beginning on the first anniversary of the date of judgment, an annual amount of $309.28 to be paid up to the anniversary of the date of judgment in year 2023. Then, on the anniversary of the date of judgment in year 2023, a lump sum of $638.24. Thereafter, beginning on the anniversary of the date of judgment in year 2024, an annual amount of $158.24 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment. c. For future unreimbursable Adaptive Equipment: Kitchen & Personal Care Items, Folding Cane, Shower Transfer Bench, Hand Held Shower, Bed Rail, and Emergency Response System expenses, beginning on the first anniversary of the date of judgment, an annual amount of $523.71 to be paid for the remainder of petitioner's life, increasing at the rate of four percent (4%), compounded annually from the date of judgment. d. For future unreimbursable Walker, Scooter, Scooter Maintenance and Battery, Wheelchair, Scooter Carrier, and Swivel Seat expenses, on the anniversary of the date of judgment in year 2023, a lump sum of $1,685.29. Then, on the anniversary of the date of judgment in year 2024, a lump sum of $278.55. Then, on the anniversary of the date of judgment in year 2025, a lump sum of $320.96. Thereafter, beginning on the anniversary of the date of judgment in year 2026, an annual amount of $278.55 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment. e. For future unreimbursable Lift Chair expenses, on the anniversary of the date of judgment in year 2026, a lump sum of $649.00. Thereafter, beginning on the anniversary of the date of judgment in year 2027, an annual amount of $108.17 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment. f. For future unreimbursable Health Club/Gym Membership/YMCA expenses, beginning on the first anniversary of the date of judgment, an annual amount of $1,764.00 to be paid up to the anniversary of the date of judgment in year 2023, increasing at the rate of four percent (4%), compounded annually from the date of judgment. g. For future unreimbursable Home Health Aide, and Ancillary Service expenses, beginning on the first anniversary of the date of judgment, an annual amount of $2,779.88 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment. h. For future unreimbursable Neurologist Mileage, Physical Therapy Evaluation Mileage, Counselor Mileage, and Health Club/Gym/YMCA Mileage expenses, beginning on the first anniversary of the date of judgment, an annual amount of $101.00 to be paid up to the anniversary of the date of judgment in year 2023. Then, on the anniversary of the date of judgment in year 2023, a lump sum of $105.32. Thereafter, beginning on the anniversary of the date of judgment in year 2024, an annual amount of $101.00 to be paid for the remainder of petitioner's life, all amounts increasing at the rate of four percent (4%), compounded annually from the date of judgment.

At the sole discretion of the Secretary of Health and Human Services, the periodic payments set forth in paragraph 10 above may be provided to petitioner in monthly, quarterly, annual or other installments. The "annual amounts" set forth above describe only the total yearly sum to be paid to petitioner and do not require that the payment be made in one annual installment. Petitioner will continue to receive the annuity payments from the Life Insurance Company only so long as he, Luis Trigueros, is alive at the time that a particular payment is due. Written notice shall be provided to the Secretary of Health and Human Services and the Life Insurance Company within twenty (20) days of Luis Trigueros's death.

11. The annuity contract will be owned solely and exclusively by the Secretary of Health and Human Services and will be purchased as soon as practicable following the entry of a judgment in conformity with this Stipulation. The parties stipulate and agree that the Secretary of Health and Human Services and the United States of America are not responsible for the payment of any sums other than the amounts set forth in paragraph 8 herein and the amounts awarded pursuant to paragraph 12 herein, and that they do not guarantee or insure any of the future annuity payments. Upon the purchase of the annuity contract, the Secretary of Health and Human Services and the United States of America are released from any and all obligations with respect to future annuity payments.

12. 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.

13. 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.

14. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 12 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds.

15. 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 either immediately or as part of the annuity contract, will be used solely for petitioner's benefit 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).

16. In return for the payments described in paragraphs 8 and 12, petitioner, in his individual capacity, and on behalf of his 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 vaccinations administered on October 2, 2013, as alleged by petitioner in a petition for vaccine compensation filed on or about August 25, 2016, in the United States Court of Federal Claims as petition No. 16-1058V.

17. 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.

18. 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.

19. 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 12 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.

20. Petitioner hereby authorizes respondent to disclose documents filed by petitioner in this case consistent with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of Records, No. 09-15-0056.

21. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the vaccines caused petitioner's alleged GBS or any other injury or his current condition.

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

Respectfully submitted, PETITIONER: LUIS TRIGUEROS ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: RONALD C. HOMER, ESQ. CATHARINE E. REEVES Conway Homer, P.C. Deputy Director 16 Shawmut Street Torts Branch Boston, MA 02116-1990 Civil Division Tel: (617) 695-1990 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: TAMARA OVERBY CAMILLE M. COLLETT Acting Director, Division of Injury Trial Attorney Compensation Programs 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 11C-26 Washington, DC 20044-0146 Rockville, MD 20857 Tel: (202) 616-4098 Dated: 1/23/2020

Stipulation; influenza ("flu") vaccine; Guillain-Barré Syndrome ("GBS").

FootNotes


1. The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website.
2. Pursuant to Vaccine Rule 4(c)(2), the Secretary's report "must contain respondent's medical analysis of petitioner's claims and must present any legal arguments that respondent may have in opposition to the petition."
3. The statement in paragraph 6 of the stipulation does not match the position the Secretary took earlier in the case. In the respondent's report, the Secretary did "not contest entitlement to compensation."
4. Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.
Source:  Leagle
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Citations
16-1058V.
Counsels
  • Ronald Craig Homer
  • Camille Michelle Collett
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