Sn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS No. 18-0641V UNPUBLISHED
CYNTHIA PETERSON, Chief Special Master Corcoran Petitioner, Filed: February 23, 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)
Maximilian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner. Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION’
On May 4, 2018, Cynthia Peterson filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seqg.* (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received to her right shoulder on November 11, 2016. Petition at 1; Stipulation, filed at February 23, 2021, 1" 2, 4. Petitioner further alleges that her vaccine-related symptoms lasted for more than six months. Petition at 6; Stipulation at J][2, 4. The stipulation states “[t]hat there is not a preponderance of the evidence demonstrating that petitioner's injury is due to a factor unrelated to vaccination” and that “petitioner is entitled to compensation under the terms of the Vaccine Act for her SIRVA Table injury.” Stipulation at JJ 5-6.
On February 23, 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.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, | am required to post it on the United States Court of Federal Claims' website in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.
2 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). Pursuant to the terms stated in the attached Stipulation, | award the following compensation:
A lump sum of $185,000.00, in the form of a check payable to Petitioner. Stipulation at J 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.?
ITIS 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. IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) CYNTHIA PETERSON, ) ) Petitioner, ) ) No. 18-641V Vv. ) Chief Special Master Corcoran
) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) )
STIPULATION
The parties hereby stipulate to the folowmg matters:
1. Cynthia Peterson, 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 is a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received the flu vaccine on November 11, 2016.
3. The vaccination was administered within the United States.
4. Petitioner sustained a right shoulder injury related to vaccination administration (“SIRVA”) within the time period set forth m the Table followmg receipt of the flu vaccine, and experienced the residual effects ofher SIRVA for more than six months.
5. There is not a preponderance of evidence demonstrating that petitioner’s injury is due to a factor unrelated to vaccination.
6. 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.
7. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine Act for her SIRVA Table mury. Therefore, 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 the following vaccine compensation payment:
A lump sum of $185,000.00 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.
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Sn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS No. 18-0641V UNPUBLISHED
CYNTHIA PETERSON, Chief Special Master Corcoran Petitioner, Filed: February 23, 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)
Maximilian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner. Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION’
On May 4, 2018, Cynthia Peterson filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seqg.* (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received to her right shoulder on November 11, 2016. Petition at 1; Stipulation, filed at February 23, 2021, 1" 2, 4. Petitioner further alleges that her vaccine-related symptoms lasted for more than six months. Petition at 6; Stipulation at J][2, 4. The stipulation states “[t]hat there is not a preponderance of the evidence demonstrating that petitioner's injury is due to a factor unrelated to vaccination” and that “petitioner is entitled to compensation under the terms of the Vaccine Act for her SIRVA Table injury.” Stipulation at JJ 5-6.
On February 23, 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.
1 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.
2 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). Pursuant to the terms stated in the attached Stipulation, | award the following compensation:
A lump sum of $185,000.00, in the form of a check payable to Petitioner. Stipulation at J 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.?
ITIS 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. IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) CYNTHIA PETERSON, ) ) Petitioner, ) ) No. 18-641V Vv. ) Chief Special Master Corcoran
) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) )
STIPULATION
The parties hereby stipulate to the folowmg matters:
1. Cynthia Peterson, 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 is a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received the flu vaccine on November 11, 2016.
3. The vaccination was administered within the United States.
4. Petitioner sustained a right shoulder injury related to vaccination administration (“SIRVA”) within the time period set forth m the Table followmg receipt of the flu vaccine, and experienced the residual effects ofher SIRVA for more than six months.
5. There is not a preponderance of evidence demonstrating that petitioner’s injury is due to a factor unrelated to vaccination.
6. 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.
7. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine Act for her SIRVA Table mury. Therefore, 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 the following vaccine compensation payment:
A lump sum of $185,000.00 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 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 paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her heirs, executors, admmistrators, 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 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 m any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resultmg from, or alleged to have resulted from, the flu vaccination administered on November 11, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or about May 4, 2018, in the United States Court of Federal Claims as petition No. 18-0641V.
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 n 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 herem expressly stated and clearly agreed to. The parties further agree and understand that the award described mn this Stipulation may reflect a compromise of the parties’ respective positions as to 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. The 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's shoulder injury or any other mjury or her current condition; however, petitioner has satisfied the Table criteria to establish entitlement to compensation.
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:
Cc : NTHIA PETERSON
ATTORNEY OF RECORD FOR PETITIONER:
Sh
MAXIMILLIAN J. MULLER Counsel for Petitioner MULLER BRAZIL, LLP
715 Twining Road, Suite 208 Dresher, PA 19025
AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES:
CHET Dale Wluthlar, PN\'Se, 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 08N146B Rockville, MD 20857
Dated: 02/2 31207 |
AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL:
— Be doth wd Ce LUNA.
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:
Foe Kunde
pu Nes rin L Peou lyn ZOE R. WADE Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 Tel: (202) 616-4118 Email: zoe.wade@usdoj.gov