Jones v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1680V UNPUBLISHED

TRACI JONES, Chief Special Master Corcoran

Petitioner, Filed: May 19, 2022 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)

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.

Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On October 30, 2019, Traci Jones 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 right shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine received on September 17, 2018. Petition at 1; Stipulation, filed May 18, 2022, at ¶¶ 2-4. Petitioner further alleges that the vaccine was administered in the United States, her injury has continued for more than six months, and she has neither received compensation in the form of an award or settlement, or filed a civil action, for her vaccine related injuries. Petition at preamble and ¶¶ 22, 24; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a Table injury for SIRVA, and denies that the flu vaccine caused petitioner to suffer a right shoulder injury or any other injury, and denies that her current condition is a sequelae of a vaccine-related injury.” Stipulation at ¶ 6. 1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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, 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 (2012). Nevertheless, on May 18, 2022, 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

) TRACI JONES, ) ) Petitioner, ) No. l 9- I 680V ) Chief Special Master Corcoran v. ) ECF ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ___________ )

STIPULATION

The parties hereby stipulate to the following matters:

I. Traci Jones ("petitioner") filed a petition for vaccine compensation under the National

Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l Oto -34 (the "Vaccine Program").

The 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 flu vaccine in her right shoulder on September 17, 2018.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she suffered from a right shoulder injury related to vaccination

administration ("SIRVA") within the time period set forth in the Table, and suffered the residual

effects of her alleged injury 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. 6. Respondent denies that petitioner sustained a Table injury for SIRVA, and denies that

the flu vaccine caused petitioner to suffer a right 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 an entry ofjudgment 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-2 l (a)(!), 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 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)( 1), 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 th is petition.

l 0. 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 Social Security Act (42 U.S.C.

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

2 11. 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 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-l 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 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 17, 2018,

as alleged by petitioner in a petition for vaccine compensation filed on or about October 30,

2019, in the United States Court of Federal Claims as petition No. l 9-l 680V.

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.

3 I 5. 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.

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 petitioner sustained a Table injury, or that the flu

vaccine either caused or significantly aggravated petitioner's alleged injury or any other injury.

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

4 Respectfully submitted,

PETITIONER:

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

JEFF~ JN! a\-U., -HEATHER 1ttQ -I'~ L. PEAR[AN Jeffrey S. Pop & Associates Deputy Director 9150 Wilshire Blvd., Suite 241 Torts Branch, Civil Division Beverley Hills, CA 90212 U.S. Department of Justice Tel.: (310) 273-5462 P.O. Box 146 Fax: (310) 274-7749 Benjamin Franklin Station Email: jpop@poplawyer.com Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: George R. Grimes - ; DlgltallyslgnedbyGeorgtR. -~ (~es•S14 $ 14 t, Dale: 2022.04.25 I S:0S:23 ·04'00' ~ F.~ CATHERINE E. STOLAR CDR GEORGE REED GR1MES, MD, MPH 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, DC 20044-0146 and Human Services Tel.: (202) 353-3299 5600 Fishers Lane, 08N 146B Fax: (202) 616-4310 Rockville, MD 20857 Email: catherine.stolar@usdoj.gov

Dated: Sl\r/~~