Brenda Faulk v. HHS - Influenza, acute disseminated encephalomyelitis (“ADEM”) and/or neuromyelitis optica (2021)

Filed 2017-03-03Decided 2021-11-29Vaccine Influenza
compensated$443,984cognitive/developmental

Case summary [AI summaries can sometimes make mistakes]

On March 3, 2017, Brenda Faulk filed a petition on behalf of her minor daughter, B.B., seeking compensation after B.B. received an influenza vaccine on October 15, 2015. The petition alleged that the vaccine caused B.B. to suffer acute disseminated encephalomyelitis (ADEM) and/or neuromyelitis optica.

Petitioner represented that no prior civil award or settlement had been made on B.B.'s behalf for the same condition. Respondent denied that the influenza vaccine caused or significantly aggravated B.B.'s alleged ADEM, neuromyelitis optica, any other injury, or her current condition.

The case resolved through a joint stipulation filed on November 23, 2021, in which the parties maintained their respective positions but agreed that judgment should enter awarding compensation. Special Master Christian J.

Moran reviewed the stipulation, found it reasonable, and adopted it as the decision of the Court on November 29, 2021. The award included a lump sum of $207,058.44 payable to petitioner as guardian or conservator of B.B.'s estate for first-year life care expenses and pain and suffering, contingent upon the provision of appropriate guardianship documentation.

Additionally, lien reimbursements were awarded: $155,153.69 payable jointly to petitioner and Community Health Choice, $42,767.31 payable jointly to petitioner and Texas Children's Health Plan Casualty Recovery Unit, and $3,524.99 payable jointly to petitioner and Optum Subrogation Services for Amerigroup-Texas-HOU. The stipulation also mandated that the Secretary of Health and Human Services purchase an annuity for B.B.'s future care.

This annuity covers various future expenses, including unreimbursable Affordable Care Act premiums and out-of-pocket costs, Medicare-related expenses, Medigap coverage, physical therapy, medications and supplies, incontinence and mobility-related items, power wheelchair costs, case management, home modification, and wheelchair lift expenses. Many of these annuity payments are set to increase at a rate of three percent compounded annually.

Petitioner was represented by Isaiah R. Kalinowski of Maglio Christopher & Toale, P.A., and respondent by Mallori B.

Openchowski of the Department of Justice. The public decision does not describe the specific onset of symptoms, diagnostic tests, or treatments received by B.B.

Theory of causation

Petitioner alleged that an influenza vaccine administered on October 15, 2015, to minor B.B. caused acute disseminated encephalomyelitis (ADEM) and/or neuromyelitis optica. Respondent denied that the vaccine caused or significantly aggravated B.B.'s alleged conditions. The case was resolved via joint stipulation, with no admission of causation by the respondent. The public decision does not detail a specific biological mechanism, clinical chronology, diagnostic tests, or treatments. The award includes a lump sum of $207,058.44 for first-year life care expenses and pain and suffering, payable to B.B.'s guardian/conservator upon documentation. It also includes lien reimbursements totaling $201,445.99 to Community Health Choice, Texas Children's Health Plan Casualty Recovery Unit, and Optum Subrogation Services for Amerigroup-Texas-HOU. Furthermore, an annuity was purchased for future care expenses, with payments generally increasing at three percent compounded annually. Petition filed March 3, 2017; stipulation filed November 23, 2021; Special Master Christian J. Moran decision and award on November 29, 2021. Petitioner's counsel was Isaiah R. Kalinowski of Maglio Christopher & Toale, P.A., and respondent's counsel was Mallori B. Openchowski of the Department of Justice.

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