JONES v. SECRETARY OF HEALTH AND HUMAN SERVICES
LAURA A JONES, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
United States Court of Federal Claims.
September 1, 2016.
Nature of Suit: 469 Injury – Other
Attorney(s) appearing for the Case
LAURA A JONES, Petitioner, represented by Barbara Dahlenburg Bonar, B. Dahlenburg Bonar P.S.C..
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent, represented by Claudia Barnes Gangi, U. S. Department of Justice.
DECISION ON JOINT STIPULATION1
THOMAS L. GOWEN, Special Master.
On April 23, 2013, Laura A. Jones (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioner alleged that as a result of receiving a Tetanus-Diptheria-acellular-Pertussis (“TDaP”) vaccine on April 22, 2010, she suffered vestibular neuronitis. Stipulation ¶ 2, 4, filed Sept. 1, 2016. Further, petitioner alleged that she experienced residual effects of this injury for more than six months.
On September 1, 2016, the parties filed a stipulation in which they state that a decision should be entered awarding compensation. Respondent denies that the TDaP vaccination caused petitioner’s alleged vestibular neuronitis, any other injury, or her current disabilities.
The parties stipulate that petitioner shall receive the following compensation:
The undersigned approves the requested amount for petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation.
The clerk of the court
The parties hereby stipulate to the following matters:
1. Laura A. Jones, 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 Tetanus-Diphtheria-acellular Pertussis (“TDar) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received her IDaP immunization on April 22, 2010.
3. The vaccine was administered within the United States.
4. Petitioner alleges that the TDaP vaccine caused her alleged vestibular neuronitis, and that she experienced 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 her behalf as a result oilier condition.
6. Respondent denies that the Thal’ vaccine caused petitioner’s alleged vestibular neuronit is, any other injury, or her current disabilities.
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:
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 Mime the special master to award reasonable attorneys’ fees and costs incurred in proceeding upon this petition.
10. 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 expected to be made under any State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX ()Nile Social Security Act (42 U.S.C. § 1396 et seq.)). or by entities that provide health services on a pre-paid basis.
11. Payments made pursuant to paragraphs 8 and 9 of this Stipulation will be made in accordance with 42 U.S.C. §300aa-15(i). subject to the availability of sullic lent 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 he 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 payment described in paragraph 8 and any amount awarded pursuant to paragraph 9, petitioner, in her individual capacity and on behalf of 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 petitioner resulting from, or alleged to have resulted from, the TDaP vaccination administered on April 22, 2010. as alleged by petitioner in a petition for vaccine compensation filed on or about April 23, 2013. in the United States Court of Federal Claims as petition No. 13-279V.
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 Nis 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 of complete conli)rmity 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 oldie parties’ respective positions as to liability and/or amount of damages, and holier, 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 TDaP vaccine caused petitioner’s alleged vestibular neuronitis, any other injury, or her current disabilities.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns.