In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-320V Filed: July 2, 2019 UNPUBLISHED
JANE BENNETT,
Petitioner, v. Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza SECRETARY OF HEALTH AND (Flu) Vaccine; Shoulder Injury HUMAN SERVICES, Related to Vaccine Administration (SIRVA) Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner. Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
Dorsey, Chief Special Master:
On March 8, 2017, petitioner 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”) as a result of an influenza (“flu”) vaccine administered on September 16, 2014. Petition at 1-3; Stipulation, filed July 1, 2019, at ¶¶ 1. Petitioner further alleges that the vaccine was administered within the United States, that she her injuries and sequalae have lasted more than six months, and that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition. Petition at 1-3; Stipulation at ¶¶ 2-5. “Respondent denies that the flu vaccine caused petitioner to suffer a right shoulder injury, or any other injury or condition.” Stipulation at ¶ 6.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Nevertheless, on July 1, 2019, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation:
A lump sum of $91,440.00 in the form of a check payable to petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under § 15(a). Id.
The undersigned approves the requested amount for petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Nora Beth Dorsey Nora Beth Dorsey 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 IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
) JANE BENNETT, ) ) Petitioner, v. ) No. 17-320V ) Chief Special Master Dorsey SECRETARY OF HEALTH AND HUMAN ) ECF SERVICES, ~
________________ Respondent. ) )
STIPULATION
The parties hereby stipulate to the following matters:
1. Jane Bennett, petitioner, filed a petition for vaccine compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 et seq. (the "Vaccine Program").
The petition seeks compensation for injuries related to petitioner's receipt of the influenza ("flu")
vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. §
100.3(a).
2. Petitioner received a flu vaccination on September 16, 2014. 1
3. The vaccine was administered within the United States.
4. Petitioner alleges that the flu vaccine caused her to suffer a right shoulder injury.
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 the flu vaccine caused petitioner to suffer a right shoulder
injury, or any other injury or condition.
1 Petitioner also received a non-covered pneurnovax vaccine on the same day, in the same arm.
I 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)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $91,440.00 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)(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- l 5(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 Socia] 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 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.
2 12. The parties and their attorneys further agree and stipulate that, except for any award
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-320V Filed: July 2, 2019 UNPUBLISHED
JANE BENNETT,
Petitioner, v. Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza SECRETARY OF HEALTH AND (Flu) Vaccine; Shoulder Injury HUMAN SERVICES, Related to Vaccine Administration (SIRVA) Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner. Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
Dorsey, Chief Special Master:
On March 8, 2017, petitioner 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”) as a result of an influenza (“flu”) vaccine administered on September 16, 2014. Petition at 1-3; Stipulation, filed July 1, 2019, at ¶¶ 1. Petitioner further alleges that the vaccine was administered within the United States, that she her injuries and sequalae have lasted more than six months, and that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition. Petition at 1-3; Stipulation at ¶¶ 2-5. “Respondent denies that the flu vaccine caused petitioner to suffer a right shoulder injury, or any other injury or condition.” Stipulation at ¶ 6.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Nevertheless, on July 1, 2019, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation:
A lump sum of $91,440.00 in the form of a check payable to petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under § 15(a). Id.
The undersigned approves the requested amount for petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Nora Beth Dorsey Nora Beth Dorsey 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 IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
) JANE BENNETT, ) ) Petitioner, v. ) No. 17-320V ) Chief Special Master Dorsey SECRETARY OF HEALTH AND HUMAN ) ECF SERVICES, ~
________________ Respondent. ) )
STIPULATION
The parties hereby stipulate to the following matters:
1. Jane Bennett, petitioner, filed a petition for vaccine compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 et seq. (the "Vaccine Program").
The petition seeks compensation for injuries related to petitioner's receipt of the influenza ("flu")
vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. §
100.3(a).
2. Petitioner received a flu vaccination on September 16, 2014. 1
3. The vaccine was administered within the United States.
4. Petitioner alleges that the flu vaccine caused her to suffer a right shoulder injury.
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 the flu vaccine caused petitioner to suffer a right shoulder
injury, or any other injury or condition.
1 Petitioner also received a non-covered pneurnovax vaccine on the same day, in the same arm.
I 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)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $91,440.00 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)(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- l 5(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 Socia] 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 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.
2 12. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys' fees and litigation costs, 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 or around September
16, 2014, as alleged by petitioner in a petition for vaccine compensation filed on or about March
8, 2017, in the United States Court of Federal Claims as petition No. 17-0320V.
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.
3 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's right shoulder
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
I I I I I I I I I I I I I I I I I I
4 Respectfully submitted,
_JETITIONER:
~~ JANE BENNETT
ATTORNEY OF RECORD FOR AUTHORIZED REPRSENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:
AMSENERTH MULLER BRAZIL, LLP 715 Twining Road, Suite 208 Dresher, PA 19025 Civil Division (215) 885-1655 U.S. Department of Justice (215) 885-1644 P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES:
NARA YAN NAIR, M.D. c~ - Director, Division of Injury Trial Attorney Compensation Programs (DICP) Torts Branch Healthcare Systems Bureau Civil Division Health Resources and Services Administration U.S. Department of Justice U.S. Department of Health and Human Services P.O. Box 146 5600 Fishers Lane Benjamin Franklin Station Parklawn Building, Mail Stop 08N146B Washington, DC 20044-0146 Rockville, MD 20857 Tel: (202) 616-4098