O'Brien v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1989V UNPUBLISHED

ROBIN O'BRIEN, Chief Special Master Corcoran

Petitioner, Filed: September 15, 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)

Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Wei Kit Tai, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1

On December 30, 2019, Robin O’Brien 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 Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of her October 1, 2018 influneza (“flu”) vaccination. Petition at 1; see Stipulation, filed at September 14, 2021, ¶¶ 1,4. Petitioner further alleges 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 on her behalf as a result of her injury. Stipulation at ¶¶ 3, 4-5; see Petition at ¶¶ 2, 19-20. “Respondent denies that [P]etitioner sustained Table SIRVA within the timeframe set forth in the Table; and denies that the flu immunization caused [P]etitioner’s alleged shoulder injury and/or any other 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1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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. 2National 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 September 14, 2021, 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 $80,810.10 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 the 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 THE UNITED ST ATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

ROBIN O'BRIEN,

Petitioner,

v. No. 19-1989V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

Respondent.

STIPULATION

The pa11ies hereby stipulate to the following matters:

I. Robin O'Brien ("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 an influenza (''flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the

'·Table"), 42 C.F.R. § I 00.3(a).

2. Petitioner received a flu vaccine on October I, 2018, in her left shoulder.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she sustained a left-sided 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

residual effects of this 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 as a result of her condition. 6. Respondent denies that petitioner sustained a Table SIRVA within the timeframe set

forth in the Table; and denies that the flu immunization caused petitioner's alleged shoulder

injury andlor any other injury.

7. Maintaining their above-stated positions, the patties 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 te1ms of this Stipulation, and after petitioner has filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa-2 l (a)(l ), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

A lump sum of$80,810.10 in the foim of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-l S(a) for injuries allegedly related to petitioner's receipt of the flu vaccine.

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 l (a)( I), and an application, the pa11ies will submit to further proceedings before

the special master to award reasonable attorneys· fees and costs incurred in proceeding upon this

petition.

l 0. 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-1 S(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 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 pa11ies and their attorneys fu11her agree and stipulate that, except for any award

for attorneys' fees and litigation costs, and past unreimbursable expenses. the money pro\'ided

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. 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 and•· 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 Cou11 of Federal Claims, under the National Vaccine Injury

Compensation Program, 42 U.S.C. § 300aa-l Oet 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 l, 2018, as alleged by petitioner in a petition for vaccine compensation filed on

December 30, 2019, in the United States Cou11 of Federal Claims as petition No. l 9-l 989V.

14. If petitioner should die prior to entry of judgment, this agreement shall be voidable

upon proper notice to the Cou11 on behalf of either or both of the parties. Respectfully submitted,

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

~~~~ HEATHER L. PEARLMAN Muller Brazil Deputy Director 715 Twining Road To11s Branch Suite 208 Civil Division Dresher, PA 19025 U.S. Depa11ment of Justice (215) 885-1655 P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: I).) !A l,,J-(Avh.-t) ~ z:;,~ ~ I V,#Se,1 A/J~ (Y~ ~ tlt~ {kvlr--- TAMARA OVERBY WEI KIT (RICKY) TAI Acting Director, Division of Injury Trial Attorney Compensation Programs (DICP) Torts Branch Healthcare Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Depa11ment of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08N 146B (202) 616-9847 Rockville, MD 20857 Wei.Taiza ,usdoj .gov