Sn the Gunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS Filed: April 29, 2021
ES ES ES ES ES ES ES ES ES ES ES ES ES KRISTINA AYCOCK, * UNPUBLISHED ES Petitioner, * No. 19-235V ES v. * Special Master Gowen ES SECRETARY OF HEALTH * Stipulation; Influenza (Flu); AND HUMAN SERVICES, * Shoulder Injury Related to * Vaccine Administration (SIRVA). Respondent. * ES ES ES ES ES ES ES ES ES ES ES ES ES
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, D.C., for petitioner. Christine M. Becer, United States Department of Justice, Washington, D.C., for respondent.
DECISION ON STIPULATION!
On February 12, 2019, Kristina Aycock (“petitioner”), filed a petition for compensation in the National Vaccine Injury Compensation Program.” Petition (ECF No. 1). Petitioner received an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), on October 3, 2017. Petitioner alleges that she sustained a right shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table, or in the alternative, that her alleged shoulder injury was caused by the vaccine. She further alleges that she experienced the residual effects of this condition for more than six months.
On April 28, 2021, respondent filed a stipulation which provides that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 33). Respondent denies that petitioner suffered a SIRVA Table injury. /d. at 6. Respondent also denies that the flu vaccine
' Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion 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:/Avww.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion 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 opinion. /d. If neither party files a motion for redaction within 14 days, the opinion will be posted on the Court’s website without any changes. [d.
> 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-10 to 34 (2012) (hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Act. caused petitioner to suffer from a right shoulder injury or any other injury or her current condition. /d. 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 the stipulation, which is attached hereto as Appendix A. Id. at ¥7.
The stipulation awards a lump sum of $53,203.93 in the form of a check payable to petitioner. This lump sum represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
I adopt the stipulation as the decision of the Court and hereby award compensation in the amount and on the terms set forth therein. Accordingly, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.?
IT ISSO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a). IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) KRISTINA AYCOCK, ) ) Petitioner, ) ) No. 19-235V Vv. ) Special Master Gowen
) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) )
STIPULATION
The parties hereby stipulate to the following matters:
1. Kristina Aycock, petitioner, 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 injuries allegedly related to petitioner’s receipt of an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received the flu vaccine on October 3, 2017.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she sustained a right shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table, or in the alternative, that her alleged shoulder injury was caused by the vaccine. She further alleges that she experienced the residual effects of her alleged injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on her behalf as a result of her condition. 6. Respondent denies that petitioner suffered a SIRVA Table injury, and denies that the flu vaccine caused petitioner to suffer from a right shoulder injury or any other injury or her current condition.
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 $53,203.93 in the form of a check payable to petitioner. 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 compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300a
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Sn the Gunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS Filed: April 29, 2021
ES ES ES ES ES ES ES ES ES ES ES ES ES KRISTINA AYCOCK, * UNPUBLISHED ES Petitioner, * No. 19-235V ES v. * Special Master Gowen ES SECRETARY OF HEALTH * Stipulation; Influenza (Flu); AND HUMAN SERVICES, * Shoulder Injury Related to * Vaccine Administration (SIRVA). Respondent. * ES ES ES ES ES ES ES ES ES ES ES ES ES
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, D.C., for petitioner. Christine M. Becer, United States Department of Justice, Washington, D.C., for respondent.
DECISION ON STIPULATION!
On February 12, 2019, Kristina Aycock (“petitioner”), filed a petition for compensation in the National Vaccine Injury Compensation Program.” Petition (ECF No. 1). Petitioner received an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), on October 3, 2017. Petitioner alleges that she sustained a right shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table, or in the alternative, that her alleged shoulder injury was caused by the vaccine. She further alleges that she experienced the residual effects of this condition for more than six months.
On April 28, 2021, respondent filed a stipulation which provides that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 33). Respondent denies that petitioner suffered a SIRVA Table injury. /d. at 6. Respondent also denies that the flu vaccine
' Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion 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:/Avww.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion 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 opinion. /d. If neither party files a motion for redaction within 14 days, the opinion will be posted on the Court’s website without any changes. [d.
> 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-10 to 34 (2012) (hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Act. caused petitioner to suffer from a right shoulder injury or any other injury or her current condition. /d. 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 the stipulation, which is attached hereto as Appendix A. Id. at ¥7.
The stipulation awards a lump sum of $53,203.93 in the form of a check payable to petitioner. This lump sum represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
I adopt the stipulation as the decision of the Court and hereby award compensation in the amount and on the terms set forth therein. Accordingly, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.?
IT ISSO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a). IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) KRISTINA AYCOCK, ) ) Petitioner, ) ) No. 19-235V Vv. ) Special Master Gowen
) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) )
STIPULATION
The parties hereby stipulate to the following matters:
1. Kristina Aycock, petitioner, 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 injuries allegedly related to petitioner’s receipt of an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received the flu vaccine on October 3, 2017.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she sustained a right shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table, or in the alternative, that her alleged shoulder injury was caused by the vaccine. She further alleges that she experienced the residual effects of her alleged injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on her behalf as a result of her condition. 6. Respondent denies that petitioner suffered a SIRVA Table injury, and denies that the flu vaccine caused petitioner to suffer from a right shoulder injury or any other injury or her current condition.
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 $53,203.93 in the form of a check payable to petitioner. 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 compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, insurance policies, Federal or State health benefits programs (other than Title 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. 11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa- 15(i), subject to the availability of sufficient statutory funds.
12. The parties and their attorneys further agree and stipulate that, except for any award for attorneys’ fees and litigation costs, and past unreimbursed expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her 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 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. § 300aa-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 petitioner resulting from, or alleged to have resulted from, the flu vaccination administered on October 3, 2017, as alleged by petitioner in a petition for vaccine compensation filed on or about February 12, 2019, in the United States Court of Federal Claims as petition No. 19-235V.
14. If petitioner should die prior to entry of judgment, this agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties. 15. 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.
16. 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 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.
17. 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 petitioner to have a right shoulder injury or any other injury or her current condition.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
a ae Respectfully submitted,
PETITIONER:
Kin to LIN fg KRISTINA AYCOCK / ATTORNEY OF RECORD FOR PETITIONER:
LEAH DURANT
Law Offices of Leah V. Durant, PLLC 1717 K Street NW, Suite 900 Washington, DC 20006
AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES:
CAPT Dale Wahler, ONSer, for
TAMARA OVERBY
Acting Director, Division of Injury Compensation Programs
Healthcare Systems Bureau
Health Resources and Services Administration
U.S. Department of Health and Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
Dated: _ 74129 hoz)
AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL:
cbt bad Ooo A
HEATHER L. PEARLMAN Acting Deputy Director Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146
Benjamin Franklin Station Washington, DC 20044-0146
ATTORNEY OF RECORD FOR RESPONDENT:
CA MHHO MISC CLA
by Meth CPealN CHRISTINE M. BECER Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 Tel: (202) 616-3665 christine.m.becer@usdoj.gov