Dudash v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-710V ************************* * Chief Special Master Corcoran MARC DUDASH, * * Petitioner, * Filed: March 31, 2020 * v. * * Decision by Stipulation; Damages; SECRETARY OF HEALTH * Guillain-Barré Syndrome; Influenza AND HUMAN SERVICES, * Vaccine. * Respondent. * * ************************* Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner. Colleen Clemons Hartley, U.S. Dep’t of Justice, Washington, D.C., for Respondent. DECISION AWARDING DAMAGES 1 On May 30, 2017, Marc Dudash filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”). 2 Petitioner alleges that he suffered from Guillain-Barré syndrome (“GBS”) as a result of his September 6, 2016 receipt of the influenza (“flu”) vaccine, or in the alternative, that the flu vaccine significantly aggravated his GSB. Moreover, Petitioner alleges that he experienced residual effects of this injury for more than six months. 1 Because this Decision contains a reasoned explanation for my actions in this case, I will 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 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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). Otherwise, the whole Decision will be available to the public. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). Respondent denies that the flu vaccine caused or significantly aggravated Petitioner’s GBS, or any other injury. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed on March 31, 2020) that the issues before them could be settled, and that a decision should be entered awarding Petitioner compensation. I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein. The stipulation awards: • A lump sum of $40,000.00 in the form of a check payable to Petitioner. Stipulation ¶ 8. This amount represents compensation for all damages that would be available under Section 15(a) of the Act. I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. 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. 3 IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review. 2 Case 1:17-w-00710-UNJ Document 51 Filed 03/31/ 20 Page 1 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) MARC DUDASH, ) ) Petitioner, V. ) No. 17-710V ) Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN )) ECF SERVICES, ) _______________ Respondent. ) ) STIEU.LATION The parties hereby stipulate to the following matters: 1. Marc Dudash, petitioner, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-I0 et seq. (the "Vaccine Program"). The petition seeks compensation for injuries 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. § l 00.3(a). 2. Petitioner received the flu vaccination on September 6, 20 16. 3. The vaccine was administered within the United States. 4. Petitioner alleges that he sustained Guillain-Barre syndrome ("GBS") within the time period set forth in the Table, or in the alternative, that his GBS was ·caused or significantly aggravated by the vaccine. He further alleges that he experienced the residual effects of this condition 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. Case 1:17-w-00710-UNJ Document 51 Filed 03/31/20 Page 2 of 5 6. Respondent denies that petitioner-sustained a GBS Table injury; denies that the vaccine caused or significantly aggravated petitioner's alleged GBS, or any other injury; and denies that his current condition is a sequelae of a vaccine-related i~jury. Medical records document that petitioner suffered viral infections in close temporal proximity to the onset of his alleged GBS, a more likely cause of GBS. 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 th/s Stipulation,· and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2 l(a)(l), the -Secretary of Health and Human Services will issue the following vaccine compensation payments: A lump sum of $40,000.00 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). 9. As soon as practicable after the entry ofjudgment 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-2l(a)(l), and an application, the parties will submit to further proceedings be.fore the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. I0. Petitioner and his 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-l5(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, insurance policies, Federal or State health 2 Case 1:17-w-00710-UNJ Document 51 Filed 03/31/20 Page 3 of 5 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. 11. Payment made pursuant to paragraph 8 and any amounts 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 unreimbursed expe~ses, the money provided purs_uant 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-l 5(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, 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 PederaJ 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 around September 6, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or about May 30, 2017, in the United States Court of Federal Claims as petition No. l 7-7IOV. 3 Case 1:17-w-00710-UNJ Document 51 Filed 03/31/20 Page 4 of 5 14. Cf petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalfofeither or both of the parties. 15. lfthe 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 confonnity 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, 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 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. 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 GBS, or any other injury or condition. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION 4 Case 1:17-w-00710-UNJ Document 51 Filed 03/31/20 Page 5 of 5 Respectfully submitted, PETITIONER: MARC DUDASH ATTORNEY OF RECORD FOR AUTHORIZED REPRSENTATIVE PETITIONER: OFTHEATTORNEY GENERAL: ~ VE~ L Ward Black Law, P.A. Deputy Director 208 West Wendover Avenue Torts Branch Greensboro, NC 27401 Civil Division (214) 622-6340 U.S. Department of Justice (214) 622-6341 fax P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH ~ c_ Lm~ ~ Rllj'ONDENT: AND HUMAN SERVICES: waA-d s~~tt.__1.. _ TAMARA OVERBY COLLEEN C. HARTLEY Acting Director, Division of Injury Trial Attorney Compensation Programs {DICP) Torts Branch Healthcare Systems Bureau Civil Division Health Resources and Services Administration U.S. Department of Justice U.S.. Department of Health and Human Services P.O. Box 146 5600 Fishers Lane Benjamin Franklin Station Parklawn Building, Mail Stop 08Nl46B Washington, DC 20044-0146 Rockville, MD 20857 Tel: (202) 616-3644 Dated: ~ I ,I :>