# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS
No. 13-887V (Not to be published)

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* HARRY MCCARTER, as * Filed: September 24, 2014 Administrator and Legal Representative * of the Estate of LILLIE MAE MCCARTER, * Decisi on by Stipulation; Damages; * Influenza (“Flu”) Vaccine; Petitioner, * Acute Disseminated * Encephalomyelitis (“ADEM”)
v. *
*
SECRETARY OF HEALTH AND * HUMAN SERVICES, *
* Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Elizabeth Muldowney

, Rawls, McNelis and Mitchell, P. C., Richmond, VA, for Petitioner.

Lynn Elizabeth Ricciardella , U.S. Dep’t of Justice, Washington, D.C., for Respondent.

DECISION AWARDING DAMAGES 1

On November 8, 2013, Harry McCarter, as admi nistrator and legal re presentative of the
estate of Lillie Mae McCarter , filed a petition seeking compen sation under the National Vaccine Injury Compensation Program. 2 Petitioner alleges that as a result of receiving the influenza (“flu”) vaccine on or about September 22, 2011, his mother, Ms. McCarter, suffered Acute Disseminated Encephalomyelitis (“ADEM”). Stipulat ion at 1 (ECF Docket No. 9). Furthermore,

1 Because this ruling contains a reasoned explanation for my action in this cas e, it will be posted 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 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To do so, Vaccine Rule 18(b) provides that each party ha s 14 days within which to request redaction “of any information furnished by that party: (1) that is a trad e 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 ruling will be available to the public.
Id.

2 The National Vaccine Injury Compen sation Program comprises 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.A. ' 300aa-10 – 34 (2006)) [hereinafter “Vaccine Act” or “the Act”]. Indi vidual sections references hereafter will be to ' 300aa of the Act.2 Petitioner alleges that Ms. McCarter’s death (w hich occurred on November 13, 2011) was part of the sequela of her v accine-related injury. Id

.

Respondent denies that Ms. McCarter’s alle ged ADEM, any other injuries, or her death were caused by the flu vaccine. Id. at 2. Nonetheless both parties, while maintaining their abovestated positions, agreed in a s tipulation filed September 17, 2014, that the issues before them can
be settled and that a deci sion should be entered awar ding Petitioner compensation. Id.

I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation 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 $250,000.00 in the form of a check payable to Petitioner as administrator and legal repres entative of the Estate of Lillie Mae McCarter. The amount represents compensation for all damages that would be available under
42 U.S.C. § 300aa-15(a).

Stipulation ¶ 8.

The stipulation also conditions the timing of payment of the award as follows:

No payment pursuant to this Stipulation shall be made until petitioner provides the Secretary with documentation es tablishing his appointment as legal representative of the Estate of Lillie Mae McCarter. If petitioner is not authorized by court of competent jurisdiction to serve as legal representative of the Estate of Lillie Mae McCarter at the time a payment pursuant to this stipulation is made, any such payment shall be paid to the pa rty or parties appointed by a court of competent jurisdiction to serve as legal representative of the Estate of Lillie Mae McCarter upon submission of written docum entation of such appointment to the Secretary.

Stipulation ¶ 12.

I approve a Vaccine Program award in the requested amounts set forth above to be made to Petitioner (with payment of the award subject to Petitioner’s prior performance of the terms of ¶ 12 in the stipulation). In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is dir ected to enter judgment herewith. 3

3 Pursuant to Vaccine Rule 11(a), th e parties may expedite entry of judgmen t by each filing (either jointly or separately) a notice renouncing their right to seek review.3 IT IS SO ORDERED.

/s/ Brian H. Corcoran
Brian H. Corcoran Special Master