       In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                            No. 13-2V
                                    Filed: September 19, 2014

* * * * * * * * * * * * * * * *                           UNPUBLISHED
MELODY CLOWSER,                               *
                                              *           Special Master Hamilton-Fieldman
                Petitioner,                   *
                                              *           Joint Stipulation on Damages;
v.                                            *           Influenza (“Flu”) Vaccine;
                                              *           Guillain-Barré Syndrome (“GBS”).
SECRETARY OF HEALTH                           *
AND HUMAN SERVICES,                           *
                                              *
                Respondent.                   *
* * * * * * * * * * * * * * * *
Danielle Strait, Maglio, Christopher and Toale, PA, Washington, D.C., for Petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, D.C., for Respondent.

                                            DECISION 1

        On January 2, 2013, Melody Clowser (“Petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa-1 to -34 (2006).
Petitioner alleged that she suffered from Guillain-Barré syndrome (“GBS”) as a result of an
influenza (“flu”) vaccine administered to her on February 4, 2011. See Petition at 1-2.

       On September 19, 2014, the parties filed a stipulation in which they stated that a decision
should be entered awarding compensation.

1
  Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by
Vaccine Rule 18(b), each party has 14 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).
2
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.


                                                  1
        Respondent denies that the flu vaccine either caused or significantly aggravated
Petitioner’s GBS or any other injury, and denies that she experienced symptoms of GBS or any
other injury for more than six months. Nevertheless, the parties agree to the joint stipulation,
attached hereto as Appendix A. The undersigned finds the stipulation reasonable and adopts it as
the decision of the Court in awarding damages, on the terms set forth therein.

       The parties stipulated that petitioner shall receive the following compensation:

       A lump sum of $200,000.00 in the form of a check payable to Petitioner;

       A lump sum of $9,639.62, which amount represents compensation for
       reimbursement of a Medicaid lien, in the form of a check payable jointly to
       Petitioner and the State of Colorado, Department of Health Care Policy &
       Financing, ID # G648127. Petitioner agrees to endorse this payment to the Medicaid
       provider; and

       A lump sum of $2,007.87, which amount represents compensation for
       reimbursement of a Medicaid lien, in the form of a check payable jointly to
       Petitioner and the Colorado Health Partnership, ID # G648127. Petitioner agrees to
       endorse this payment to the Medicaid provider.

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

       Stipulation ¶ 8.

       The undersigned approves the requested amount for Petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.

         In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’
stipulation. 3

       IT IS SO ORDERED.

                                             s/ Lisa Hamilton-Fieldman
                                             Lisa Hamilton-Fieldman
                                             Special Master




3
 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.


                                                2
        Case 1:13-vv-00002-UNJ Document 37 Filed 09/19/14 Page 1 of 5




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

                                                )
MELODY CLOWSER,                                 )
                                                )
                     Petitioner,                )      No. 13-2V     ECF
                                                )
                v.                              )       Special Master Hamilton-Fieldman ·
                                                )
 SECRETARY OF HEALTH                            )
 AND HUMAN SERVICES,                            )
                                                )
     Respondent.                                )
~~~~~~~~~~~~~~)

                                           STIPULATION

        The parties hereby stipulate to the following matters:

         1.   Petitioner, Melody Clowser, filed a petition for vaccine compensation under the

 National Va?cine 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 trivalent influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table

- (the "Table"), 42 C.F.R. § 100.3(a).

        2.    Petitioner received the flu vaccine on February 4, 2011.

         3.   The vaccine was administered within the United States.

         4.   Petitioner alleges that, as a result ofreceiving'the flu vaccine, she suffered from

 Guillain-Barre syndrome ("GBS"), and that she experienced symptoms of GBS for more than six

 months.

         5.   Petitioner represents that there has been no prior award or settlement of a civil action

 for damages as a result of this injury.
       Case 1:13-vv-00002-UNJ Document 37 Filed 09/19/14 Page 2 of 5




       6.    Respondent denies that the flu vaccine either caused or significantly aggravated

petitioner's GBS or any other injury, and denies that she experienced symptoms of GBS or any

other injury for more than six months.

        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 ;:1 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-2l(a)(l), the Secretary of Health and Human

Services will issue the following vaccine compensation payments:

                a.   A lump sum of $200,000.00 in the form of a check payable to petitioner.

                b. A lump sum of$ $9,639.62, which amount represents compensation for
                reimbursement of a Medicaid lien, in the form of a check payable jointly to
                petitioner and the State of Colorado, Department of Health Care Policy &
                Financing, ID# G648127. Petitioner agrees to endorse this payment to the
                Medicaid provider.

                c. A.lump sum of $2,007.87, which amount represents compensation for
                reimbursement of a Medicaid lien, in the form of a check payable jointly to
                petitioner and.the Colorado Health Partnership, ID# G648127. Petitioner
                agrees to endorse this payment to the Medicaid provider.

The above amounts represent compensation for all damages that would be available under 42

U.S.C. § 300aa-15(a).

        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-2l(a)(l), and an application, the parties will submit to further proceedings

before the special master to award reasonable attorneys' fees and costs incurred in proceeding


                                                   2
        Case 1:13-vv-00002-UNJ Document 37 Filed 09/19/14 Page 3 of 5




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 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.   Payments made pursuant to paragraph 8 of this·Stipulation, 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, 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 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, 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

                                                   3
       Case 1:13-vv-00002-UNJ Document 37 Filed 09/19/14 Page 4 of 5




alleged to have resulted from, the flu vaccine administered on February 4, 2011, as alleged by

petitioner in a petition for vaccine compensation filed on or about January 2, 2013, in the United

States Court of Federal Claims as petition No. 13-2V.

        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 voidab}e 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 either caused or significantly

aggravated petitioner's alleged injury or any other injury.

        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 1:13-vv-00002-UNJ Document 37 Filed 09/19/14 Page 5 of 5




Respectfully submitted,

PF..TITIONER:




ATTORNEY OF RECORD FOR                         AUTHOR IZED REPRESE NTATIVE
PETITION ER:                                   OF THE ATTORNE Y GENERAL :



                                               VINCENT J. ATANOSK1
Maglio, Chri$"()pher & T~le, PA                Deputy Director
14~f5 Pennsylvania Avenue, NW. Suite4oo
                                               to!'.tS Branch.·. ·
Washington. DC 20004                           Civil Division
888-952-5242                                   U.S. Department of Justice
                                               P.O. Box 146
                                               Benjamin Franklin Sta6on
                                               Washington, DC 20044-0146

AUTHORIZED REPRESE NTATIVE                     ATTOR.111EYOFRECORDFOR
OFTHESECRETARYOFHEALTH                         RESPONDENT:
AND HUMAN SERVICES:




 A. MELISSA HOUSTON, M.D., M.P.H, FAAP         DARRYL R. WISHARD
 Acting Director, Diviskm Qf Vaccine           Trial Attorney
     Injury Compensation (DV1C)                Tori:S Branch
 Acting Director, Countermeasures Injury       Civil Division
    Coinpens_a.tion Program (C::J.f:P)         U.S. Department of Justice
 Healthcare Systems Bureau                     P.O. Box 146
 U.S. Department of Health                     Benjamin Franklin Station
    and Human Services                         Washington, DC 20044·0146
 5600 Fishers Lane                              (202) 616~4357
 Parklawn Building, Mail Stop 11 C-26
 R.ockville, MD   ~857 r·   .
 Dated:      C{   lJ (\ ( tY'"
                                           5
