Schneider v. Secretary of Health and Human Services
Opinion
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-456V
Filed: March 26, 2018
UNPUBLISHED
GARY SCHNEIDER, Special Processing Unit (SPU); Joint Petitioner, Stipulation on Damages; Influenza v. (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration SECRETARY OF HEALTH AND (SIRVA) HUMAN SERVICES,
Respondent.
Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner. Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On March 30, 2017, petitioner 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccination administered on October 1, 2015. Petition at 1-5; Stipulation, filed March 23, 2018, at ¶¶ 1, 4. Petitioner further alleges that the vaccine was administered within the United States, that he has experienced residual effects of this injury for more than six months, and that there has been no prior award or settlement of a civil action for damages on his behalf as a result of his condition. Petition at 3-4; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner’s alleged SIRVA, or any other injury, was caused-in-fact by his flu vaccination.” Stipulation at ¶ 6. .1
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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). 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, the undersigned agrees that the identified material fits within this definition, the undersigned 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).
Nevertheless, on March 23, 2018, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation:
A lump sum of $45,000.00 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 42 U.S.C. § 300aa-15(a). Id.
The undersigned approves 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/Nora Beth Dorsey Nora Beth Dorsey 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 TIIE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
************************************* GARY SCHNEIDER, • •
Petitioner, • No.17-456V • CHIEF SPECIAL MASTER v. • NORA BETH DORSEY •
SECRETARV OF flEALTfl AND * HUMAN SERVICES, * Respondent.
'*
************************************* STIPULATION
The parties hereby stipulate to the following matters:
I. 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 ofan influenza
("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R.
§ l00.3 (a).
2. Petitioner received a flu immunization in his left arm on October I, 2015.
3. This vaccine was administered within-the United States.
4. Petitioner alleges that he developed a shoulder injury related to vaccine
administration ("SIRVA") that was caused-in-fuct by a flu vaccine and that he has experienced
rcsidu~I 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 fur damages on his behalf as a result of his condition.
6. Respondent denies that petitioner's alleged SIRVA, or any other injury, was
caused-in~fact by his flu vaccination.
7. Maintaining their above-slated 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 con:sistent
with the tenns 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$45,000.00 in the fottn of a check payable to petitioner, This amount · represents compensation for all damages that would be available under42 U.S.C. § 300aa-15(a).
9. As soon as practicable after the ~ntry ofjudgment 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.
I 0. Petitioner and his aitomey represent thnt compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primnrUy liable
under 42 U.S.C. § 300an- 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 poli~ies, 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 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, 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 of42 U.S.C, § 300aa-15(g) and (h).
13, In return for the payments described 'in paragraphs 8 and 91 petitioner, in his
individual capacity and on beha[f of his heirs, executors, administrators, successors or assigns,
does forever irrevocably and un~onditionally 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,judgmcnts, claims, damages, loss of seivices, expenses and all demands
of whatever kind or nature) tbot have been brought, could have been brought, or could be timely
brought in the Court of Federal Claims, under the National Vaccine lnjury Compensation
Program, 42 U.S.C. § 300aa-10 et seq,, on account of, 01· 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, a flu vaccination administered on October I, 2015, as
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