In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-826V
CARA BARGER, Chief Special Master Corcoran
Petitioner, Filed: October 1, 2024 v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Elizabeth Andary, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On June 6, 2023, Cara Barger filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”), a Table injury, resulting from an influenza (“flu”) vaccine she received on September 28, 2020. Pet., ECF No. 1. Petitioner further alleges that the vaccine was administered in the United States, she experienced the residual effects of her condition for more than six months, and there has been no prior award or settlement of a civil action for damages on Petitioner’s behalf as a result of her condition. Id. Respondent denies “that [P]etitioner sustained a SIRVA, as defined in the Table; denies that the vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.” Stipulation at 2, ECF No. 20.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). 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 redact 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. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Nevertheless, on October 1, 2024, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached stipulation, I award the following compensation:
A lump sum of $28,000.00 in the form of a check payable to Petitioner. Stipulation at 2. This amount represents compensation for all items of damages that would be available under Section 15(a). Id.
I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court is directed to enter judgment in accordance with this Decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran Brian H. Corcoran Chief Special Master
3 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.
2 Vinesign Document ID: BA031F2B-1216-48E4-8F87-60442FFEDD85
IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
CARA BARGER.
Petitioner,
v. No. 23-826V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,
STIPULATION The parties hereby stipulate to the foJlowing matters:
I. Cara Barger, petitioner, filed a petition for vaccine compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-lO 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. § I00.3(a).
2. Petitioner received the flu vaccine in her left ann on September 28, 2020.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine
Administration ("SIRVA') within the time frame set forth in the Table following administration
of the flu vaccine, and that she experienced the residual effects of this 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 the alleged injury.
The signed document can be validated at https://app.vinesign.comNerify 6. Respondent denies that petitioner sustained a SIRVA, as defined in the Table; denies
that the vaccine caused petitioner's alleged shoulder injury. or any other injury; and denies that
her current condition is a sequeJa of a vaccine.related injury.
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 ofjudgment reflecting a decision consistent with
the tenns of this Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $28,000.00 in the fonn ofa check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa•l5(a).
9. As soon as practicable after the entry ofjudgment 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-2l(a)(l), 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-1S(g), to the extent that payment has been made or can reasonably be
expected to be made under any State compensation program5t 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.
2 11. Payment made pursuant to paragraph 8 of this Stipulation, and any amounts awarded
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-826V
CARA BARGER, Chief Special Master Corcoran
Petitioner, Filed: October 1, 2024 v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Elizabeth Andary, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On June 6, 2023, Cara Barger filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”), a Table injury, resulting from an influenza (“flu”) vaccine she received on September 28, 2020. Pet., ECF No. 1. Petitioner further alleges that the vaccine was administered in the United States, she experienced the residual effects of her condition for more than six months, and there has been no prior award or settlement of a civil action for damages on Petitioner’s behalf as a result of her condition. Id. Respondent denies “that [P]etitioner sustained a SIRVA, as defined in the Table; denies that the vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.” Stipulation at 2, ECF No. 20.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). 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 redact 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. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Nevertheless, on October 1, 2024, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached stipulation, I award the following compensation:
A lump sum of $28,000.00 in the form of a check payable to Petitioner. Stipulation at 2. This amount represents compensation for all items of damages that would be available under Section 15(a). Id.
I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court is directed to enter judgment in accordance with this Decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran Brian H. Corcoran Chief Special Master
3 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.
2 Vinesign Document ID: BA031F2B-1216-48E4-8F87-60442FFEDD85
IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
CARA BARGER.
Petitioner,
v. No. 23-826V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,
STIPULATION The parties hereby stipulate to the foJlowing matters:
I. Cara Barger, petitioner, filed a petition for vaccine compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-lO 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. § I00.3(a).
2. Petitioner received the flu vaccine in her left ann on September 28, 2020.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine
Administration ("SIRVA') within the time frame set forth in the Table following administration
of the flu vaccine, and that she experienced the residual effects of this 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 the alleged injury.
The signed document can be validated at https://app.vinesign.comNerify 6. Respondent denies that petitioner sustained a SIRVA, as defined in the Table; denies
that the vaccine caused petitioner's alleged shoulder injury. or any other injury; and denies that
her current condition is a sequeJa of a vaccine.related injury.
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 ofjudgment reflecting a decision consistent with
the tenns of this Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $28,000.00 in the fonn ofa check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa•l5(a).
9. As soon as practicable after the entry ofjudgment 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-2l(a)(l), 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-1S(g), to the extent that payment has been made or can reasonably be
expected to be made under any State compensation program5t 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.
2 11. Payment made pursuant to paragraph 8 of this Stipulation, and any amounts awarded
pursuant to paragraph 9 ofthis Stipulation, will be made in accordance with 42 U.S.C. § 300aa-
t S(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 unreimbursable 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-l S(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 an actions, 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 IO et seq., on account ot: 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 vaccine administered on or about September 28, 2020, as
alleged by petitioner in a petition for vaccine compensation filed on June 6, 2023, in the United
States Court of Federal Claims as petition No. 23-826V.
14. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
3 15. If the special master fails to issue a decision in complete confonnity with the tenns
of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity 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 suffer a
shoulder injury or her current disabilities, or any other injury or condition, or that petitioner
sustained an injury contained in the Vaccine Injury Table.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
4 Respectfully submitted,
PETITIONER:
CARA BARGER
ATIORNEYOFRECORDFOR AUTHORIZED REPRSENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:
JJ( MAXIMILLIAN J. MULLER dex~~-t.!.N~ Muller Brazil Deputy Director 715 Twinning Road, Suite 208 Torts Branch Dresher, PA 19025 Civil Division (215) 885-1655 U.S. Department of Justice E-mail: max@mullerbrazil.com P.O. Box 146 Benjamin Franklin Station Washington, OC 20044..0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OFTHESECRETARYOFHEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey s• Jeffrey Olgftatly signed by S. Beach -S -$ Beach Date:2024.09.23 t9:16:08-04'00' for CAPT GEORGE REED GRIMES, MD, MPH ~Cl.Cos ELIZABETII A. ANDARY Director, Division oflnjury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department ofJustice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08W-25A Tel: (202) 616·9824 Rockville, MD 20857 E-mail: Elizabeth.A.Andar.x@usdoi.gov
Dated: