Sn the Auited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0998V UNPUBLISHED ELEANOR GRAY Chief Special Master Corcoran Petitioner, Filed: February 2, 2021 V. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Influenza HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration Respondent. (SIRVA)
Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ , for petitioner.
Julia Marter Collison, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION’
On July 12, 2019, Eleanor Gray filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seg.? (the “Vaccine Act’). Petitioner alleges that she suffered a left shoulder injury related to vaccine administration as a result of an influenza vaccine received on December 23, 2018. Petition at 1-4; Stipulation, filed February 2, 2021, at ¢§ 2-4. Petitioner further alleges 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 as a result of her alleged condition. Petition at 1, 4; Stipulation at 7 3-5. “Respondent denies that petitioner sustained a shoulder injury as defined in the Vaccine Injury Table; denies that the vaccine caused petitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury.” Stipulation at J] 6.
' Because this unpublished decision contains a reasoned explanation for the action in this case, | am required to post it on the United States Court of Federal Claims' website in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). 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, | agree that the identified material fits within this definition, | will redact such material from public access.
? National 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 February 2, 2021, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. | 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, | award the following compensation:
A lump sum of $40,000.00 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). /d.
| 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 the court is directed to enter judgment in accordance with this decision.°
IT IS SO ORDERED. s/Brian H. Corcoran
Brian H. Corcoran Chief Special Master
’ 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. IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
ELEANOR GRAY,
Petitioner, No. 19-998V
Chief Special Master Corcoran
V. ECF SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
STIPULATION The parties hereby stipulate to the following matters: 1. Eleanor Gray (“petitioner”) 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 an injury allegedly related to petitioner’s receipt of an influenza (‘flu’) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42
C.F.R. § 100.3(a).
2. On December 23, 2018, petitioner received a flu vaccine in her left deltoid. 3. The vaccine was administered in 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, or in the alternative, that her alleged shoulder injury was caused by the vaccine. She further alleges that she 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 as a result of her alleged condition.
lof5 6. Respondent denies that petitioner sustained a shoulder injury as defined in the Vaccine Injury Table; denies that the vaccine caused petitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequelae 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 anentry 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)(1), the Secretary of Health and Human Services will issue a lump sum of $40,000.00 in the form of a check payable to petitioner. This lump sum 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)(1) and anapplication, 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 State 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 pre-paid basis.
11. Payment made pursuant to paragraph 8 of this Stipulation, and any amount awarded pursuant to paragraph 9, will be made in accordance with 42 U.S.C.
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Sn the Auited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0998V UNPUBLISHED ELEANOR GRAY Chief Special Master Corcoran Petitioner, Filed: February 2, 2021 V. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Influenza HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration Respondent. (SIRVA)
Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ , for petitioner.
Julia Marter Collison, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION’
On July 12, 2019, Eleanor Gray filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seg.? (the “Vaccine Act’). Petitioner alleges that she suffered a left shoulder injury related to vaccine administration as a result of an influenza vaccine received on December 23, 2018. Petition at 1-4; Stipulation, filed February 2, 2021, at ¢§ 2-4. Petitioner further alleges 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 as a result of her alleged condition. Petition at 1, 4; Stipulation at 7 3-5. “Respondent denies that petitioner sustained a shoulder injury as defined in the Vaccine Injury Table; denies that the vaccine caused petitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury.” Stipulation at J] 6.
' Because this unpublished decision contains a reasoned explanation for the action in this case, | am 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). 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, | agree that the identified material fits within this definition, | will redact such material from public access.
? National 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 February 2, 2021, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. | 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, | award the following compensation:
A lump sum of $40,000.00 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). /d.
| 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 the court is directed to enter judgment in accordance with this decision.°
IT IS SO ORDERED. s/Brian H. Corcoran
Brian H. Corcoran Chief Special Master
’ 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. IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
ELEANOR GRAY,
Petitioner, No. 19-998V
Chief Special Master Corcoran
V. ECF SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
STIPULATION The parties hereby stipulate to the following matters: 1. Eleanor Gray (“petitioner”) 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 an injury allegedly related to petitioner’s receipt of an influenza (‘flu’) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42
C.F.R. § 100.3(a).
2. On December 23, 2018, petitioner received a flu vaccine in her left deltoid. 3. The vaccine was administered in 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, or in the alternative, that her alleged shoulder injury was caused by the vaccine. She further alleges that she 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 as a result of her alleged condition.
lof5 6. Respondent denies that petitioner sustained a shoulder injury as defined in the Vaccine Injury Table; denies that the vaccine caused petitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequelae 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 anentry 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)(1), the Secretary of Health and Human Services will issue a lump sum of $40,000.00 in the form of a check payable to petitioner. This lump sum 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)(1) and anapplication, 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 State 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 pre-paid basis.
11. Payment made pursuant to paragraph 8 of this Stipulation, and any amount 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. 2o0f5 12. The parties and their attorneys further agree and stipulate that, except for any award for attorneys’ fees and litigation costs, and past unreimbursed 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 paragraph 8, and any amount awarded pursuant to paragraph 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 vaccine administered on December 23, 2018, as alleged in a Petition filed on July 12, 2019, in the United States Court of Federal Claims as petition No. 19-998V.
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 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 30f 5 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 actor thing other than is herein expressly stated and clearly agreedto. 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 any vaccines caused petitioner’s alleged shoulder injury, or any other injury or her current condition.
18. All rights and obligations of petitioner shall apply equally to petitioner’s heirs,
executors, administrators, successors, and/or assigns.
END OF STIPULATION
4o0f$ Respectfully submitted,
PE TERONER:
Ae wre fb,
ELEANOR GRAY
ATTORNEY OF RECORD FOR PETITIONER:
ANDREW D. DOWNING ESQ Van Cott & Talamante, PLLC 3030 N. Third Street, Suite 790 Phoenix, Arizona 85012
(602) 257-9160
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH AND HUMAN SERVICES:
CALT Dale Wahler, PNSe, fr TAMARA OVERBY Acting Director, Division of Injury Compensation Programs Healthcare Systems Bureau U.S. Department of Health and Human Services 5600 Fishers Lane Parklawn Building, Mail Stop 08-N146B Rockville, MD 20857
Dated: O2/0z/z07\
5 of 5
AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL:
dh oot
HEATHER L. PEARLMAN Acting Deputy Director Torts Branch
Civil Division
U.S. Department of Justice P.O. Box 146
Benjamin Franklin Station Washington, DC 20044-0146
ATTORNEY OF RECORD FOR RESPONDENT:
ha M Corben by Nedathunl Peat Man
JULIA M. COLLISON
Trial Attorney
Torts Branch
Benjamm Franklin Station Washington, DC 20044-0146 (202) 305-0102