Gonzalez v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0671V

MARIA HERRERO GONZALEZ, Chief Special Master Corcoran

Petitioner, Filed: October 13, 2023 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jessi Carin Huff, Maglio Christopher & Toale, Seattle, WA, for Petitioner.

Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On January 12, 2021, Maria Herrero Gonzalez filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Her amended petition was filed on April 14, 2022. Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine that was administered to her on September 3, 2020. Amended Petition at 1,3; Stipulation, filed at October 12, 2023, ¶¶ 2, 4. Petitioner further alleges that she received the vaccine in the United States, that she experienced the residual effects of her injury for more than six months, and there has been no prior award or settlement of a civil action as a result of her alleged condition. Amended Petition at 1, 4; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner sustained a SIRVA Table injury; denies that the flu vaccine caused [P]etitioner’s alleged shoulder injury, or any

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). other injury; and denies that her current condition is a sequelae of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on October 12, 2023, 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 $80,000.00 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

MARIA JOSE HERRERO GONZALEZ,

Petitioner,

V. No. 21-0671V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

STIPULATION

The parties hereby stipulate to the following matters:

I. Maria Jose Herrero Gonzalez ("petitioner") filed an amended petition for vaccine

compensation under the National Vaccine lnjwy Compensation Program, 42 U .S.C. §§ 300aa-10

to -34 (the "Vaccine Program").' The amended petition seeks compensation for injuries

allegedly related to petitioner's receipt of an influenza (..flu") vaccine which is a vaccine

contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a).

2. Petitioner received the subject vaccination on September 3, 2020 in the right ann.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she sustained a shoulder injury related to vaccine administration

("SIRVA") within the time period set forth in the Table following administration of the vaccine.

She further alleges that she experienced the residual effects of this condition for more than six

months.

1 The amended petition was filed on April 14, 2022 and supersedes the original timely filed January 12, 2021 petition. 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 sustained a SIRVA Table injury; denies that the flu

vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that her

current condition is a sequelac 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 $80,000.00 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)(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-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

2 State health benefits programs (other than Title X[X of the Social Security Act (42 U.S.C.

§ 1396 et seq.)), or by entities that provide hea]th services on a pre-paid basis.

t 1. 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 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-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 September 3, 2020, as

alleged by petitioner in an amended petition for vaccine compensation filed on or about April 14,

2022, in the United States Court of Federal Claims as petition No. 21-671V.

3 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 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 narure 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 flu vaccine caused petitioner's alleged shoulder

injury or any other injury or her current condition, 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 Respectfully submitted,

PETITIONER:

:=_ L1 /1 MARIA JOSE HERRERO GONZALEZ

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

.. Maglio Christopher & Toale Law Firm Deputy Director 1325 4th Avenue Torts Branch Suite 1730 Civil Division Seattle, WA, 98101 U.S. Department of Justice Tel: (888)-952-5242 P.O. Box 146 Email: ihuff@mctlaw.com Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Olgll•Dyslgnedl>tHet1'l' Henry P• /L ,, Ailn / ~(ruh P. Mcmillan -SS by Mcmillan -SS :~io:0.09.2611"2:37 CDR GEORGE GRIMES, MD, MPH Director, Division ofinjury ~ Trial Attorney Iu!f Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08N 1468 Tel: (202) 616-4847 Rockville, MD 20857 Email: amanda.y.pasciutor~usdoj.gov

Dated: IOUd t I IJ3