In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-94V Filed: November 27, 2023
************************* * * JANE DOE, * * * Petitioner, * * v. * * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * * Respondent. * * ************************* *
Leah Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner Gabrielle Fielding, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON JOINT STIPULATION 1
On January 28, 2020, Jane Doe (“Petitioner”) filed a petition, seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program”). 2 Pet., ECF No. 1. Petitioner alleges she suffered from a shoulder injury related to vaccine administration (“SIRVA”) as a result of the influenza (“flu”) vaccination she received on September 14, 2018. See Stipulation ¶ 2, 4, dated November 21, 2021 (ECF No. 53); see also Petition.
Respondent denies “petitioner sustained a SIRVA Table injury; denies that the vaccine
1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request 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). Otherwise, the Decision in its present form will be available. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa. caused petitioner’s alleged shoulder injury, or any other injury; and denies that petitioner’s current condition is a sequela of a vaccine-related injury.” See Stipulation ¶ 6. Nonetheless, both parties, while maintaining their above-stated positions, agreed in a stipulation filed November 21, 2023 that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.
The stipulation awards:
a lump sum of $90,000.00 in the form of a check payable to petitioner.
Stipulation ¶ 8. This award represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter judgment herewith. 3
IT IS SO ORDERED.
s/ Katherine E. Oler Katherine E. Oler Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their right to seek review. JN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) JANE DOE, ) ) Petitioner, ) No. 20-94V (ECF) v. ) Special Master Oler ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. }
STIPULATIQN
The parties hereby stipulate to the following matters:
I. ("petitioner" or "Jane Doe"), filed a petition for vaccine compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-J0 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. § I 00.3(a)
2. Petitioner received a flu vaccine on September 14, 2018.
3. The vaccine was administered within the United States.
4. The petition alleges that petitioner sustained a shoulder injury related to vaccine
administration ("SIRVA") within the time period set forth in the Table, or in the alternative, that
petitioner's alleged shoulder injury was caused by the vaccine. The petition further alleges that
petitioner experienced the residual effects of this condition for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages arising out of the alleged vaccine injury. 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the
vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that
petitioner's current condition is a sequela 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 ofj udgment reflecting a decision consistent with
the tenns of this Stipulation, and after petitioner has ti led 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 S90,000.00 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)( I), 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 petitioner's 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,
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-94V Filed: November 27, 2023
************************* * * JANE DOE, * * * Petitioner, * * v. * * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * * Respondent. * * ************************* *
Leah Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner Gabrielle Fielding, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON JOINT STIPULATION 1
On January 28, 2020, Jane Doe (“Petitioner”) filed a petition, seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program”). 2 Pet., ECF No. 1. Petitioner alleges she suffered from a shoulder injury related to vaccine administration (“SIRVA”) as a result of the influenza (“flu”) vaccination she received on September 14, 2018. See Stipulation ¶ 2, 4, dated November 21, 2021 (ECF No. 53); see also Petition.
Respondent denies “petitioner sustained a SIRVA Table injury; denies that the vaccine
1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request 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). Otherwise, the Decision in its present form will be available. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa. caused petitioner’s alleged shoulder injury, or any other injury; and denies that petitioner’s current condition is a sequela of a vaccine-related injury.” See Stipulation ¶ 6. Nonetheless, both parties, while maintaining their above-stated positions, agreed in a stipulation filed November 21, 2023 that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.
The stipulation awards:
a lump sum of $90,000.00 in the form of a check payable to petitioner.
Stipulation ¶ 8. This award represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter judgment herewith. 3
IT IS SO ORDERED.
s/ Katherine E. Oler Katherine E. Oler Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their right to seek review. JN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) JANE DOE, ) ) Petitioner, ) No. 20-94V (ECF) v. ) Special Master Oler ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. }
STIPULATIQN
The parties hereby stipulate to the following matters:
I. ("petitioner" or "Jane Doe"), filed a petition for vaccine compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-J0 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. § I 00.3(a)
2. Petitioner received a flu vaccine on September 14, 2018.
3. The vaccine was administered within the United States.
4. The petition alleges that petitioner sustained a shoulder injury related to vaccine
administration ("SIRVA") within the time period set forth in the Table, or in the alternative, that
petitioner's alleged shoulder injury was caused by the vaccine. The petition further alleges that
petitioner experienced the residual effects of this condition for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages arising out of the alleged vaccine injury. 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the
vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that
petitioner's current condition is a sequela 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 ofj udgment reflecting a decision consistent with
the tenns of this Stipulation, and after petitioner has ti led 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 S90,000.00 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)( I), 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 petitioner's 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
2 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.
12. The parties and their attorneys further agree and stipulate that, except for any award
for attorney's 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-I 5(a) and (d), and subject to the conditions of 42 U.S.C.
§ 300aa-l 5(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in petitioner' s
individual capacity, and on behalfof petitioner's 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
September 14, 2018, as alleged in a petition for vaccine compensation filed on or about January
28, 2020, in the United States Court of Federal Claims as petition No. 20-94V.
14. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable
3 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 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 tenns 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's alleged injury or
any other injury or petitioner's current disabilities, or that petitioner suffered 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 Re,pcctfblly aubmfeted, PETITIONER:
AffORNEY OF RECORD FOR AUTHORIZED RE1RUINTATIVE
~ ~~ ' MIM+l\'t&Q OF THE ATrORNEY GENIRAL:
Id~ LEAH V. DURANT HBAntEll L PBARLMAN Law Offices or Leah v. Durant, PLLC Deputy Director 1717 K S=t NW, Suite 900 Tor11 Branch, Civil Divilioa Wasblngcon. DC 20006 U.S. Department orJustice Tel: 202-775-9200 P.O.Box J46 Pax:202-65~-1178 Batjamin Fl'lllklia Scatkm Wuhingcon. DC 20044-0146
AUl'IIORIZED REPRESENTATIVE ATl'ORNEY OF RECORD ,OR OFTRESECRETARVOFREAL'ffl RESPONDENT: AND BUMAN SERVICF.S: HenryP. _):.=:.,_, • • -=,-•" ~~~ 111 by Mcmltlan -~ 7all
CDR GEORGE REED GRIMES, MD. MPH Director. OM.sion ofhtjury l'dal Amy ~1>tat\t- l>ircc:t'IW Compensation Prog,ams Tons BraacJi, CiYil DMsion Health SystemS Bureau U.S. Depanmcat ofJustice Health Resoun:es and Services P.O.Box 146 Administration Benjamin Faaklla Slldon U.S. Deparcment of Healdl Wasbingtoo. DC 20044-Gl46 and Human Services • Eaoa) 6H 366' 2,02 .. ._ .__ 4~'11 5600 Fishers Lane, 08W-25A Tel: 2&i 6i6-Me7 Rockville. MD 20857 Email: 1,-nhUt@l,: loj.gu, '34~i't't\~ .fi tij1n9e ~ ' ·1 al • Dated: 1..o t,lov. w-,