Oliver v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1852V

VIVIAN OLIVER, Chief Special Master Corcoran

Petitioner, Filed: June 26, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

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

Ryan Pohlman Miller, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On December 16, 2022, Vivian Oliver 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 left shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury and also caused-in-fact injury, after receiving the influenza (“flu”) vaccine on October 8, 2021. Petition at 1, ¶¶ 5, 22; Stipulation, filed May 30, 2024, ¶¶ 1-2, 4. Petitioner further alleges that she received the vaccines within the United States, that she suffered the residual effects of his SIRVA for more than six months, and that neither she nor any other party has filed a civil action or received compensation for her SIRVA. Petition at ¶¶ 5, 19, 21; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner sustained a SIRVA Table injury; denies that vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6.

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). Nevertheless, on June 25, 2024, 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 $30,000.00 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

VIVIAN OLIVER,

Petitioner,

V. No. 22- l 852V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

STIPULATION

The parties hereby stipulate to the following matters:

1. Petitioner, Vivian Oliver, 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 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 vaccine on or about October 8, 2021.

3. The vaccine 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, or in the alternative,

that her alleged shoulder injury was caused by the vaccine. She fwther 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 arising out of the alleged vaccine injury. - 1- 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the

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

current condition is a sequela of a vaccine-related injury.

7. Maintaining their above-stated positions, the patties neve1iheless 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-2l(a)(l), the Secretary of Health and Human

Services will issue the following vaccine compensation payment:

A lump sum of $30,000.00, 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)(]), and an application, the parties will submit to further proceedings

before the special master to award reasonable attorneys ' fees and costs incurred in any

proceeding upon this petition.

I 0. Petitioner and petitioner' s 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, -2- and 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-l 5(g).

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 patties 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-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

petitioner' s individual capacity, and on behalf of petitioner' s heirs, executors, administrators,

successors or assi gns, 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 United States 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 vaccination as alleged by petitioner in a petition for vaccine compensation

filed on or about December 16, 2022, in the United States Court of Federal Claims as petition

No. 22-l 852V. -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 paities.

15. If the special master fails to issue a decision in complete conformity with the terms

of this Stipulation or if the United States Comt 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 patties hereto to make any payment or to do any act or thing other than is herein

expressly stated and clearly agreed to. The parties futther 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.

I 7. This Stipulation shall not be construed as an admission by the United States or the

Secretary of Health and Human Services that the vaccine caused petitioner' s alleged injury or

any other injury or petitioner's current 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

-4- Respectfully submitted,

PETtTIONER:

IVIAN OLIVER

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVF, PETITIONER: OF THE ATTORNEY GENERAL!

~ ~\LP~ IIEA THER L. PEARLMAN Jeffrey S. Pop & Associates 9150 Deputy Director Wilshire Blvd., Suite 241 Beverly Tort8 Branch, Civil Division Hills~ CA 90212 U.S. Department of Justice (310) 273-5462 P.O. Box 146 jpop@poplawycr.com Benjamin Franklin Station Washington. DC 20044~0146

AUTHORIZED REPRESENTATIVE AITORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: George R. Grimes - Digitally signed by George R. Grlmu-S14 S14 Date: 2024.06,17 11:57:38 --04'00' i:J ,O - /2. ar l/4,1!1 CDR GEORGE REED GRIMES, MD, MPII RYAN~uik Director, Division oflnjury Trial Attorney Compensation Programs To1ts 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, 08W ~25A (202) 305-3027 Rockville, MD 20857 ryun.miller2@usdoj.gov

Dated: _ _ &/ 'L'1 / 1.. 'I -5-