# Durand v. Secretary of Health and Human Services > United States Court of Federal Claims · August 21, 2018 URL: https://www.frixlaw.com/law-library/cases/4305711 ## Case - **Court:** United States Court of Federal Claims - **Decided:** August 21, 2018 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Thomas L. Gowen - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4305711 ## Opinion text In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: July 27, 2018 * * * * * * * * * * * * * * * * * * * JUANA OLGA DURAND as personal * representative of the Estate of Jorge * Antonio Durand, * UNPUBLISHED * Petitioner, * No. 15-1153V v. * Special Master Gowen * SECRETARY OF HEALTH * Joint Stipulation; Influenza (“Flu”); AND HUMAN SERVICES, * Guillain-Barre Syndrome (“GBS”); * Death; Respondent. * * * * * * * * * * * * * * Leah Durant, Law Offices of Leah V. Durant, Washington, DC, for petitioner. Claudia Gangi, United States Department of Justice, Washington, DC, for respondent. DECISION ON STIPULATION1 On October 8, 2015, Juana Olga Durant (“Petitioner”) filed a petition for compensation as the personal representative of the Estate of Jorge Antonio Durand (“Mr. Durand”), pursuant to the National Vaccine Injury Compensation Program.2 Petitioner alleged that Mr. Durand suffered from Guillain-Barre Syndrome (“GBS”) as a result of an influenza vaccine he received on September 10, 2013. Petition at Preamble; Stipulation at ¶¶ 2, 4. Petitioner further alleged that Mr. Durand’s death was the sequela of his alleged vaccine-related injury. Stipulation at ¶ 4. On July 27, 2018, the parties filed a joint stipulation (“Stipulation”) in which they stated that a decision should be entered awarding compensation to petitioner. ECF No. 71. Respondent 1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website without any changes. Id. 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 (2012) (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. denies that the influenza immunization caused Mr. Durand’s alleged GBS, any other injury, or his death. Id. at ¶ 6. 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 compensation to petitioner according to the terms of the joint stipulation attached hereto as Appendix A. The joint stipulation awards: 1) A lump sum of $375,000.00 in the form of a check payable to petitioner as legal representative of the Estate of Jorge Antonio Durand. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa- 15(a). I find the stipulation reasonable and I adopt it as the decision of the Court in awarding damages, on the terms set forth therein. Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen 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 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS _________________________________________ ) JUANA OLGA DURAND as personal ) representative of the Estate of Jorge ) Antonio Durand, ) ) Petitioner, ) ) No. 15-1153V v. ) Special Master Gowen ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ) STIPULATION The parties hereby stipulate to the following matters: 1. Juana Olga Durand (“petitioner”), as personal representative of the Estate of Jorge Antonio Durand (“Mr. Durand”), deceased, 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 illness and death allegedly related to Mr. Durand’s receipt of an influenza (“flu”) vaccine. 2. Mr. Durand received the flu vaccine on September 10, 2013. 3. The vaccine was administered within the United States. 4. Petitioner alleges that as a result of receiving the flu vaccine, Mr. Durand suffered Guillain-Barré Syndrome (“GBS”). Mr. Durand passed away on April 6, 2014. Petitioner further alleges that Mr. Durand’s death was the sequela of his alleged vaccine-related injury. 1 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on behalf of Mr. Durand as a result of his alleged condition or his death. 6. Respondent denies that the flu vaccine caused Mr. Durand’s alleged GBS, any other injury, or his death. 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: A lump sum of $375,000.00 in the form of a check payable to petitioner as legal representative of the Estate of Jorge Antonio Durand. 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 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 before the special master to award reasonable attorneys’ fees and costs incurred in proceeding upon this petition. 10. Petitioner and her attorney represent that they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), including State compensation programs, insurance policies, 2 Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or entities that provide health services on a pre-paid basis. 11. Payments made pursuant to paragraph 8 of this Stipulation, and any amount awarded pursuant to paragraph 9, will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds. 12. Petitioner represents that she presently is, or within 90 days of the date of judgment will become, duly authorized to serve as legal representative of the Estate of Jorge Antonio Durand under the laws of the State of Florida. No payments pursuant to this Stipulation shall be made until petitioner provides the Secretary with documentation establishing her appointment as legal representative of the Estate of Jorge Antonio Durand. If petitioner is not authorized by a court of competent jurisdiction to serve as legal representative of the Estate Jorge Antonio Durand 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 legal representative of the Estate of Jorge Antonio Durand upon submission of written documentation of such appointment to the Secretary. 13. In return for the payments described in paragraph 8, and any amount awarded pursuant to paragraph 9, petitioner, in her individual capacity, and as the personal representative of the Estate of Jorge Antonio Durand, on behalf of Mr. Durand’s 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 3 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. § 300 aa-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 Mr. Durand resulting from, or alleged to have resulted from, the flu vaccine administered on September 10, 2013, as alleged in a Petition filed on October 8, 2015, in the United States Court of Federal Claims as petition No. 15-1153V. 14. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the United States 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 voidable at the sole discretion of either party. 15. 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 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. 16. 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 Mr. Durand’s alleged GBS, any other injury, or his death. 4 17. All rights and obligations of petitioner in her capacity as the legal representative of the Estate of Jorge Antonio Durand shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION / / / / / / / / / / / / / / / / / / 5 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4305711. Public record. Not legal advice.