Kollasch v. Sec'y of Health & Human Servs.

• Decision Date: 06 April 2021
• Docket Number: No. 10-717V,10-717V
• Parties: RONNI KOLLASCH and CHRISTOPHER KOLLASCH, as parents and natural guardians of their minor child, Q.K., Petitioners, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
• Court: U.S. Claims Court

RONNI KOLLASCH and CHRISTOPHER KOLLASCH,as parents and natural guardians of their minor child, Q.K., Petitioners, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

No. 10-717V

United States Court of Federal Claims

April 6, 2021

OFFICE OF SPECIAL MASTERS

(to be published)

Chief Special Master Corcoran

Kathleeen M. Loucks, Lommen Abdo, P.A., Minneapolis, MN, for Petitioners.

Lara A. Englund, U.S. Dep't of Justice, Washington, DC, for Respondent.

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT¹

On October 21, 2010, Ronni and Christopher Kollasch, on behalf of their son, Q.K., filed a timely petition for vaccine compensation under the National Vaccine Injury Compensation Program ("Vaccine Program").² The Petitioners alleged that Q.K. (when he was three years old) experienced transverse myelitis ("TM") after receipt of an influenza vaccine in November 2009.The parties settled the matter, and a decision granting damages based on their stipulated settlement was filed in July 2012. ECF No. 35.

Now, more than eight years later, Petitioners have asked to reopen the case so they may obtain relief from the judgment. Judgment, dated August 1, 2012 (ECF No. 37). Petitioners specifically argue that difficulties in caring for Q.K. brought on by the COVID-19 Pandemic necessitate modification to the annuity payment schedule. Motion for Relief from Judgment, filed Nov. 30, 2020 (ECF No. 51) ("Mot."). Respondent has opposed Petitioners' request. Response to Mot., filed Jan. 8, 2021 (ECF No. 54) ("Opp."). Petitioners have since filed a Reply in an effort to address Respondent's arguments against modification of the annuity payment schedule. Reply, filed Jan. 15, 2021 (ECF No. 55).

For the reasons stated in more detail below, I deny Petitioners' Motion.

Procedural History

After the case's commencement in 2010, Petitioners filed medical records in support of their claim. Respondent thereafter filed a Rule 4(c) Report on February 11, 2011 asserting that compensation was not appropriate in this case. Respondent's Report, filed Feb. 11, 2011 (ECF No. 7). Thereafter, both parties submitted expert reports and medical literature in support of their respective positions. A one-day entitlement hearing was scheduled to take place on April 27, 2012. Pre-Hearing Order, dated Dec. 9, 2011 (ECF No. 22). Before the hearing could occur, however, the parties indicated that they had agreed to negotiate a settlement, and they were successful in their efforts, obviating the need for a trial. Joint Status Report, filed Mar. 19, 2012 (ECF No. 23).

On July 26, 2012, Respondent filed a Stipulation memorializing the structured settlement reached by the parties. Stipulation, filed July 26, 2012 (ECF No. 34). The Stipulation, signed by both petitioners and their counsel, provided a lump sum of $125,000.00 payable to Petitioners as guardians of Q.K.'s estate, plus "[a]n amount sufficient to purchase the annuity contract described [herein], paid to the life insurance company from which the annuity will be purchased." Stipulation ¶ 8. The annuity would guaranty payment in future years of sums needed for Q.K.'s care, when he would no longer be a legal dependent, but was expected to require ongoing care given the nature of his alleged vaccine injury. Thus, it was structured to provide payments of "$6,500.00 per year for 30 years certain and life thereafter," beginning on April 17, 2032 (when Q.K. would be twenty-three years old), plus certain lump sum payments as follows: $10,000.00 on April 17, 2031; $20,000.00 on April 17, 2032; $25,000.00 on April 17, 2039; and $30,000.00 on April 17, 2044. Id. ¶ 10.

The Stipulation also provided details about the purchase and operation of the planned annuity:

11. The annuity contract will be owned solely and exclusively by the Secretary of Health and Human Services and will be purchased as soon as practicable following the entry of a judgment in conformity with this Stipulation. The parties stipulate and agree that the Secretary of Health and Human Services and the United States of America are not responsible for the payment of any sums other than the amounts set forth in paragraph 8 herein and the amounts awarded pursuant to paragraph 12 herein, and that they do not guarantee or insure any of the future annuity payments. Upon the purchase of the annuity contract, the Secretary of Health and Human Services and the United States of America are released from any and all obligations with respect to future annuity payments.

19. 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 voidable at the sole discretion of either party.

20. 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 12 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.

Id. at ¶¶ 11, 19-20 (emphasis added).

The parties' stipulation was adopted by the special master who presided over the case as a decision awarding damages in this matter, and judgment subsequently entered on August 1, 2012. Decision, dated July 26, 2012 (ECF No. 35). Petitioners filed an election to accept judgment on August 2, 2012, and on August 8, 2012, Respondent purchased an annuity contract in accordance with that judgment. Notice of Election to Accept Judgment, filed Dec. 26, 2012 (ECF No. 45) ("Election"); Annuity, filed as Ex. 5 on Nov. 30, 2020 (ECF No. 52-5).

There was thereafter no contact between the Court of Federal Claims/Office of Special Masters ("OSM") and Petitioners for a significant period of time. But then, nearly eight years after the case had concluded, Petitioners submitted³ to OSM a letter dated July 9, 2020 in which they requested that a special master "re-visit the annuity that was set up in 2012 for the possibility of withdrawing funds for [Q.K.]'s present needs." Letter, filed Aug. 10, 2020 (ECF No. 47-1). Thematter was subsequently reassigned⁴ to me on September 30, 2020. Notice of Reassignment, dated Sept. 30, 2020 (ECF No. 50). Through informal communications with my chambers, Petitioners were advised to discuss their request with their attorney, and on August 20, 2020, they filed a consented motion seeking to substitute Ms. Kathleen Loucks, Esq. for former counsel in the matter as the attorney of record. Motion to Substitute Attorney, filed Aug. 20, 2020 (ECF No. 48).

On November 30, 2020, Petitioners filed the present Motion for Relief from Judgment. Respondent filed his brief in opposition to Petitioners' request on January 8, 2021. In an effort to rebut the arguments raised in Respondent's opposition brief, Petitioners filed a Reply on January 15, 2021. The matter is now ripe for resolution.

I. Applicable Legal Standards

Under Vaccine Rule 36, Appendix B, RCFC (the "Vaccine Rules"), a party may seek relief from judgment pursuant to RCFC 60(a) or 60(b). Here, the circumstances for relief under RCFC 60(a) (which is largely intended to correct inadvertent mistakes in a judgment's language or calculations) do not apply.⁵ RCFC 60(b) is therefore applicable, and it delineates five specific circumstances for relief:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence could not have been discovered in time to move for a new trial under RCFC 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation or misconduct by an opposing party;

(4) the judgement is void; [or]

(5) the judgement has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable.

RCFC 60(b)(1)-(5). Additionally, RCFC 60(b)(6) provides a catch-all permitting a party to obtain modification of a decision based upon "any other reason that justifies relief." RCFC 60(b)(6). Petitioners seek relief pursuant to RCFC 60(b)(5) and 60(b)(6). Mot. at 1.

As a remedial provision, Rule 60(b) is to be "liberally construed for the purpose of doing substantial justice." Patton v. Sec'y of Health & Hum. Servs., 25 F.3d 1021, 1030 (Fed. Cir. 1994). But prior Program cases have also emphasized that granting relief pursuant to RCFC 60(b) "should be the exception, not the rule." Vessels v. Sec'y of Dep't. of Health & Hum. Servs., 65 Fed. Cl. 563, 568 (2005). Special masters have discretion whether to grant relief under Rule 60(b), and are instructed to weigh equitable factors in the exercise of that discretion. See McCray v. Sec'y of Health & Hum. Servs., No. 11-567V, 2014 WL 2858593, at *1 (Fed. Cl. Spec. Mstr. May 29, 2014) (citing CNA Corp. v. United States, 83 Fed. Cl. 1, 7 (2008)). The Court of Appeals for the Federal Circuit has previously emphasized that the Vaccine Act's policy goals of providing quick and generous recovery to individuals who have been harmed by vaccines should be taken into account in any decision to reopen closed matters. Moczek v. Sec'y of Health & Hum. Servs., 776 Fed. Appx. 671, 674 (Fed. Cir. 2019) (granting petitioner's motion for relief pursuant to RCFC 60(b)(1) even though repeated attorney error in missing deadlines resulted in the claim's dismissal).

A. Relief Pursuant to RCFC 60(b)(5)

RCFC 60(b)(5) provides that the...