# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18

- 1359 V Filed: October 22, 2019 UNPUBLISHED

STE F ANIE BENNETT, on behalf of the ESTATE OF SHAWN GESSNER

, ,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Special Processing Unit (SPU); Joint Stipulation on Damages and Attorney ’ s Fees ; Influenza (Flu) Vaccine; Guillain

- Barre Syndrome (GBS)

Daniel A Singer

, Shamberg, Johnson & Bergman, Chtd.

, Kansas City, MO

, for petitioner. Voris Edward Johnson , U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION 1

Corcoran

, Chief Special Master:

On September 5, 2018

, p etitioner filed a petition on behalf of dece dent, Shawn Gessner, for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq

. , 2 ( the “Vaccine Act” )

. Petitioner alleges that M r. Gessne r suffered Guillain

- Barré syndrome (“GBS”) and died following his re c eipt of a n influenza ( “ fl u ” ) vaccin ation on September 26, 2017 . Petition at 1 ; Stipulation , filed October 17, 2019

, at ¶ ¶ 2, 4

. Respondent states that “ petitioner is entitled to compensation under the terms of the Vaccine Program for Mr. Gessner’s GBS and subsequent death. ” Stipulation at ¶ 7

.

1 I intend to post this decision on the United States Court of Federal Claims' website. This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to reda ct medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. Because this u npublished decision contains a reasoned explanation for the action in this case, I am required to 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 note (2012) (Federal Management and Promotion of Electronic Government Services)

.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subpara gra ph of 42 U.S.C. § 300aa (2012 ).2

O n October 17, 2019 , the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation and attorneys ’ fees

. 3 I find the stipulation reasonable and adopt it as the decision of the Court in awarding damages and atto rney ’ s fees , on the terms set forth therein.

Pursuant to the term s stated in the attached Stipulation

, the I award the following compensation:

• A lump sum of $451,765.36
, consisting of $195,000.00 for pain an d suffering, $6,765.36 in past unreimbursed expenses, and the $250,000.00 statutory death benefit, in the form of a check payable to petitioner, Ste f anie Bennett, as Special Administrator of the estate of Shawn Gessner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that wo uld be available under § 15 (a). Id

. ; and

• $20,000.00 for petitioner’s attorneys’ fees and costs, in the form of a check made payable jointly to petitioner and her counsel, Daniel A. Singer

.

I approve the requested amount for petitioner’s compensation and atto rney s ’ f e es

. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision. 4

IT IS SO ORDERED.

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

3 The attached st ip ulation was filed prior to petitioner ’s unopposed motion to correc t the captioned spelling of her first name. Resp ondent filed a status report on October 17, 2019, confirming that the corrected spelling of petition er ’s name shou ld be adopted for purposes of entering judgment. Accordingly, th is decision is issued a d opting the a mendment.

4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

__________________________________________ ) STEPHANIE BENNETT on behalf of ) the estate of SHAWN GESSNER, ) ) Petitioner, ) ) No. 18

- 1359V (ECF)

v. ) Chief Special Master Dorsey ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) __________________________________________)

STIPULATION

The parties hereby stipulate to the following matt ers:

1. Stephanie Bennett (“petitioner”)

, on behalf of the e state of Shawn Gessner (“Mr

.

Gessner ”), filed a petition for vaccine compensation under the National Vaccine Injury

Compensation Program, 42 U.S.C. §§ 300aa

- 10 to

- 34 (the “Vaccine Program”). Th e petition

seeks compensation for Mr

. Gessner’s injuries and death following his re ceipt of an influenza

(“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R.

§100.3(a).

2. Mr. Gessner received a flu vaccine on September 26, 2017

.

3. The vaccine w as administered within the United States.

4. Mr

. Gessner subsequently sustained the first symptom or manifestation of onset of

Guillain

- Barré s yndrome (“GBS”) within the time period set forth in the Table

, and later died as

a result of his GBS.

5. There is not a preponderance of the evidence demonstrating that Mr. Gessner’s2 GBS and subsequent death were due to a factor unrelated to his September 26, 2017 flu vaccine.

6

. Petitioner represent s that there has been no prior award or settlement of a civil

actio n for damages on behalf of Mr

. Gessner as a result of his GBS or death

.

7

. According ly , petitioner is entitled to compensation under the terms of the Vaccine

Program for Mr. Gessner’s GBS and subsequent death . T herefore, a decision should be entered

awarding the compe nsation 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 s :

a. A lump sum of $ 451,765.36, consisting of $195,000.00 for pain and s uffering, $6,765.36 in past unreimbursed expenses, and the $250,000.00 statutory death benefit, in the form of a check payable to p etitioner

, Stephanie Bennett
, as Special A dministrator of the estate of Shawn Gessner

. This amount represents compensation f or all damages that would be availabl e under 42 U.S.C. § 300aa

15(a) ; and,

b. $20,000.00 for petitioner’s attorneys’ fees and costs, in the form of a check made payable jointly to petitioner and her counsel, Daniel A. Singer of Shamberg, Johnson, & Bergman , Chtd.

, which amount is not an un reasonable amount to have been incurred for p roceedings in this case to date . Respondent’s lack of objection to the amount sought in this case should not be construed as an ad mission, concession, or waiver as to the hourly rates requested, the number of hours billed, or the other litigation

- related costs.

9

. Petitioner and he r attorney represent that compensation to be provided pursuant to

this Stipulation is not for any items or services for which the Pro gram is not primarily liable

under 42 U.S.C. § 300aa

- 15(g), to the extent that payment has been made or can reasonably be3 expected to be made under any State compensation programs, insurance policies, Federal or

State health benefits programs (other than T itle 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.

1 0

. Payment s made pursuant to paragraph 8 of this Stipulation will be made in

accordance with 42 U.S.C. § 300aa

- 15(i), subject to the availability of sufficient statutory funds.

11

. Petitioner represent s that she presently is , or within 90 days of the date of

judgment will become , duly authorized to serve as Special A dministrator of Mr. Gessner ’s estate

un der the laws of the State of Kansas . No payment pursuant to this Stipulation shall be made

until petitioner provide s the Secretary w ith documentation establishing her appointment as

Special A dministrator of Mr. Gessner ’s estate. If petitioner is not auth orized by a court of

competent jurisdi ction to serve as Special A dministrator of the estate of Shawn Gessner at the

time a payment pursuant to this Stipulation is to be made, any such payment shall be paid to the

party or parties appointed by a court of competent jurisdiction to serve as Special A dministrator

of the estate of Shawn Gessner upon submission of wri tten documentation of such appointment

to the Secretary.

1 2

. In return for the paymen ts described in paragraph 8 , petitioner, in he r individual

capacity and as Special A dministrator of the estate of M r

. Gessner , and on behalf of the estate’s

heirs, execut ors, administrators, successors o r assigns, do es forever irrevocably and

unconditionally release, acquit and discharge the Secretary of Health and Human Services and

the United States of America from any and all actions or causes of action (including agree ments,

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 Compensa tion Program, 42 U.S.C. §4 300aa

- 10 et seq., on account of, or in any way growing out of, any and all known or un known,

suspected or unsuspected personal injuries to, or death of, Mr. Gessner resulting from, or allege d

to have resulted from, the influenza v accine administered on September 26, 2017

, as alleged by

petitioner in a petition for vaccine compensatio n filed on or about September 5, 2018 , in the

United States Court of F eder al Claims as petition No. 18

- 1359 V.

1 3

. 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 a nd this Stipulation shall be voidable at the sole discretion of either party.

14

. This Stipulation expresses a full and complete negotiated settlement of liability

and damages claimed under the National Vaccine Injury Act of 1986, as amended. 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.

15

. All rights and obligations of petitioner , in her individual capacity as the Special

Administrator of the estate of Shawn Gessner, hereunder sh all apply equally to petitioner ’ s heirs,

executors, administrators, successors and/or assigns.

END OF STIPULATION

/ / / / / / /Respectfully submitted,

ATTORNEY OF RECORD FOR PETITIONER: 

# ~/-

DANIEL A. SINGER Shamberg, Johnson, & Bergman, Chtd. 2600 Grand Boulevard, Suite 550 Kansas City, MO 64108 (816) 474-0004

AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES:



# tuaA.d**s~~** ~-1-
TAMARA OVERBY Acting Director, Division of Injury Compensation Programs (DICP) Healthcare Systems Bureau U.S. Department of Health and Human Services 5600 Fishers Lane Parklawn Building, Mail Stop 08N 146B Rockville, MD 20857

Dated: 

### I D / r1 / f 

### °l

5 AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL:

RINE E. REEVES

Civil Division U.S. Department of Justice P.O

. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

ATTORNEY OF RECORD FOR RESPONDENT:

Torts Branch Civil Division U.S

. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 (202) 616-4136