Elliott v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-512V

BROOKE ELLIOTT, Chief Special Master Corcoran

Petitioner, Filed: January 10, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner.

Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1

On January 11, 2021, Brooke Elliott 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”) caused by an influenza (“flu”) vaccine administered on October 8, 2019. Petition at 1-3; Stipulation, filed at January 8, 2024, ¶¶ 1, 2. Petitioner further alleges that the vaccine was administered within the United States, that she suffered the residual effects of her injury for 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 3-4; Stipulation at ¶¶ 3-5. Respondent denies that Petitioner suffered the onset of her alleged SIRVA within the Table timeframe; denies that the flu vaccine caused Petitioner’s alleged shoulder injury or any other injury and further denies that her current disabilities are a sequela of a vaccine-related injury. Stipulation at ¶ 6. 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 January 8, 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 $60,000.00 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 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 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

BROOKE ELLIOTT,

Petitioner, o. 21-5 12V Chief Special Master Corcoran V. SPU

STIPULATION

The parties hereby stipulate to the following matters:

1. Petitioner, Brooke Elliott, 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 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 vaccine on or about October 8, 2019.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she suffered a Shoulder h~ury Related to Vaccine Administration

("SIRVA") as a consequence of the flu immunization she received on or about October 8, 2019,

and further alleges that she suffered the residual effects of this inj ury 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.

Page 1 of 5 6. Respondent denies that petitioner suffered the onset of her alleged SIRVA within the

Table timeframe; denies that the flu vaccine caused petitioner's alleged shoulder injury or any

other injury and further denies that her current disabilities are 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 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 $60,000.00. in the form of a check payable to pet1l1oner. representing compensation for ::ill 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-2 I (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 they have identified to respondent all known

sources of payment for items or services for which the Program is not primarily liable under 42

U.S.C. § 300aa-15(g), including Stale 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 entities that provide health services on a prepaid basis.

Page 2 of 5 11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded

pursuant to paragraph 9 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-15(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa- l 5(g) and (h).

13. ln return for the payments described in paragraphs 8 and 9, petitioner, in her individual

capacity, and on behalf of her heirs, executors, administrators, successors, and assigns, does

forever in-evocably 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 or 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

United States Court of Federal Claims, under the National Vaccine Injury Compensation Program,

42 U .S.C. § 300aa-l 0 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 about October 8, 2019, as

alleged by petitioner in a petition for vaccine compensation filed on or about January 11, 2021 in

the United States Court of Federal Claims as petition No. 2 l-512V.

14. ff 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.

Page 3 of 5 15. If the special master fails to issue a decision in complete conformity with the terms of

this Stipulation or if the United States 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 do any act or thing other than is herein expressly stated and

dearly agreed to. The parties further agree and understand that the award described in this

Stipulation may reflect a compromise of the pat1ies' respective positions as to liability andtor

amount of damages, and furth~r. that a change in the nature of the in,iur) or condition or in the

items of compensation sought, is not grounds to modify or re, ise 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 shoulder

injury or any other injury or any of her cunent disabilities.

18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

heirs, executors. administrators, successors, and/or assigns.

END OF STIPULATION

Page4of5 Respectfully submitted,

PETITIONER: -, • • J, . . .

[ "''~....s.,...

BROOKE ELLIOTT

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

M~~v- JESSICA OLINS ~ ~\

AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR THE SECRETARY OF HEALTH AND RESPONDENT: HUMAN SERVICES: George R. Grimes - DigitallyslgnedbyGeorgeR. Grlmes-S14 s14 Date: 2023.12.26 19:52:34 ·0S'OO'

CDR GEORGE REED GRIMES, MD, MPH MALLORl B. OPENCHOWSKI Director, Division of Injury Trial Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justice Health Resources and Services P.O. Box 146 Administration Benjamin Franklin Station U.S. Department of Health Washington, D.C. 20044-0146 and Human Services Tel: (202) 305-0660 5600 Fishers Lane, 08W-25A mallori.b.openchowski@usdoj.gov Rockville, MD 20857

Dated: o.Jo lz.oz, ~

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