Sn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS Filed: September 8, 2021
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KIMBERLY MARTIN, * No. 19-1661V * Petitioner, * Special Master Sanders V. * * Stipulation for Award; Influenza SECRETARY OF HEALTH ** (“Flu”) Vaccine; Shoulder Injury AND HUMAN SERVICES, * Related to Vaccine Administration * (“SIRVA”) Respondent. **
John R. Howie, Jr., Howie Law, PC, Dallas, TX, for Petitioner. Traci R. Patton, United States Department of Justice, Washington, DC, for Respondent.
DECISION!
On October 25, 2019, Kimberly Martin (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program.” 42 U.S.C. §§ 300aa-10 to -34 (2012); Pet. at 1, ECF No. 1. Petitioner alleged that the influenza (“flu”) vaccine she received on October 26, 2016, caused her to sustain a shoulder injury related to vaccine administration (“SIRVA”). Pet. at 1. Petitioner further alleged that she experienced the residual effects of her injury for more than six months. Stip. at 1, ECF No. 26.
On September 7, 2021, the parties filed a stipulation in which they state that a decision should be entered awarding compensation to Petitioner. /d. at 2. Respondent “denies that [P]etitioner sustained a SIRVA, as defined in the Table; denies that the vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury.” /d. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. /d. I find the stipulation reasonable and adopt it as the decision of the Court in awarding damages, on the terms set forth therein.
' This Decision shall be posted on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2012)). This means the Decision will be available to anyone with access to the Internet. As provided by Vaccine Rule 18(b), each party has 14 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).
* National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. The parties stipulate that Petitioner shall receive the following compensation: A lump sum of $20,000.00 in the form of a check payable to [P]etitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a)[.] Td.
I approve the requested amount for Petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation. *
IT IS SO ORDERED. s/Herbrina D. Sanders
Herbrina D. Sanders Special Master
> Pursuant to Vaccine Rule 11(a), entry of judgment is 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
KIMBERLY MARTIN,
Petitioner, No. 19-1661V
Special Master Sanders ECF
Vv.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Ne Ne Ne Ne ee ee ee ee ee ee”
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Kimberly Martin, 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 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 the flu vaccination in her left arm on October 26, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of receiving the flu vaccine within the Table time frame, and that she experienced residual effects of this 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 SIRVA, as defined in the 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 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)(1), the Secretary of Health and Human Services will issue a lump sum of $20,000.00 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 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 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. 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.
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Sn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS Filed: September 8, 2021
HK OK OK OK OK KK Kk Kk kK Kk kk ok Kk OK OK KOK OK OK OK
KIMBERLY MARTIN, * No. 19-1661V * Petitioner, * Special Master Sanders V. * * Stipulation for Award; Influenza SECRETARY OF HEALTH ** (“Flu”) Vaccine; Shoulder Injury AND HUMAN SERVICES, * Related to Vaccine Administration * (“SIRVA”) Respondent. **
John R. Howie, Jr., Howie Law, PC, Dallas, TX, for Petitioner. Traci R. Patton, United States Department of Justice, Washington, DC, for Respondent.
DECISION!
On October 25, 2019, Kimberly Martin (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program.” 42 U.S.C. §§ 300aa-10 to -34 (2012); Pet. at 1, ECF No. 1. Petitioner alleged that the influenza (“flu”) vaccine she received on October 26, 2016, caused her to sustain a shoulder injury related to vaccine administration (“SIRVA”). Pet. at 1. Petitioner further alleged that she experienced the residual effects of her injury for more than six months. Stip. at 1, ECF No. 26.
On September 7, 2021, the parties filed a stipulation in which they state that a decision should be entered awarding compensation to Petitioner. /d. at 2. Respondent “denies that [P]etitioner sustained a SIRVA, as defined in the Table; denies that the vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury.” /d. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. /d. I find the stipulation reasonable and adopt it as the decision of the Court in awarding damages, on the terms set forth therein.
' This Decision shall be posted on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2012)). This means the Decision will be available to anyone with access to the Internet. As provided by Vaccine Rule 18(b), each party has 14 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).
* National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. The parties stipulate that Petitioner shall receive the following compensation: A lump sum of $20,000.00 in the form of a check payable to [P]etitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a)[.] Td.
I approve the requested amount for Petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation. *
IT IS SO ORDERED. s/Herbrina D. Sanders
Herbrina D. Sanders Special Master
> Pursuant to Vaccine Rule 11(a), entry of judgment is 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
KIMBERLY MARTIN,
Petitioner, No. 19-1661V
Special Master Sanders ECF
Vv.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Ne Ne Ne Ne ee ee ee ee ee ee”
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Kimberly Martin, 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 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 the flu vaccination in her left arm on October 26, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of receiving the flu vaccine within the Table time frame, and that she experienced residual effects of this 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 SIRVA, as defined in the 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 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)(1), the Secretary of Health and Human Services will issue a lump sum of $20,000.00 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 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 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. 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 unreimbursable expenses, the moncy 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 retum 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, 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 vaccine administered on or about October 26, 2016, as alleged by petitioner in a petition for vaccine compensation filed on October 25, 2019, in the United States Court of Federal Claims as petition No. 19-1661V.
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 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 the flu vaccine caused petitioner to suffer an injury contained in the Vaccine Injury Table, a shoulder injury or her current disabilities, or any other
injury or condition. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION Respectfully submitted,
PETITIONER: ‘ -”- On ty ERLY
ATTORNEY OF RECORD FOR AUTHORIZED REPRSENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: JOHN HOWIE, JR. HEATHER L. PEARLMAN
Hi LAW, P.C. Deputy Director
2608 Hibernia Street Torts Branch Dallas, TX 75204 Civil Division
(214) 622-6340 U.S. Department of Justice (214) 622-6341 P.O. Box 146 E-mail: jhowie@howielaw.net Benjamin Franklin Station
Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: ry Nes CP enw tn —
TAMARA OVERBY TRACI R. PATTON Acting Director, Division of Injury Assistant Director Compensation Programs (DICP) Torts Branch Healthcare Systems Bureau Civil Division
Health Resources and Services Administration U.S. Department of Justice U.S. Department of Health and Human Services _ P.O. Box 146
5600 Fishers Lane, 08N146B Benjamin Franklin Station Rockville, MD 20857 Washington, DC 20044-0146
Tel: (202) 353-1589 E-mail: Traci.Patton@usdoj.gov
Dated: 609/07