Shorkey v. Secretary of Health and Human Services
Opinion
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS
********************* SHAWN SHORKEY, * * No. 15-768V Petitioner, * Special Master Christian J. Moran
*
v. * * Filed: March 16, 2017 SECRETARY OF HEALTH * AND HUMAN SERVICES, * Stipulation; influenza (“flu”) vaccine;
* chronic inflammatory demyelinating Respondent. * polyneuritis (“CIDP”).
*********************
Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for Petitioner; Colleen C. Hartley, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On March 16, 2017, the parties filed a joint stipulation concerning the petition for compensation filed by Shawn Shorkey on July 23, 2015. In his petition, petitioner alleged that the influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), and which he received on November 15, 2012, caused him to suffered chronic inflammatory demyelinating polyneuritis (“CIDP”). Petitioner further alleges that he suffered the residual effects of this injury for more than six months. Petitioner represents that there has been no prior award or settlement of a civil action for damages on his behalf as a result of his condition.
Respondent denies that the flu vaccine caused petitioner’s alleged CIDP or any other injury and further denies that his alleged current disabilities are a sequela of a vaccine-related injury.
1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website.
Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds said stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.
Damages awarded in that stipulation include:
A lump sum payment of $35,000.00 in the form of a check payable to petitioner, Shawn Shorkey. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 15-1329V according to this decision and the attached stipulation.2
IT IS SO ORDERED.
S/Christian J. Moran
Christian J. Moran
Special Master
2 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.
IN TliK'UNlTE'J) STAT.ES Cf)URT OF JrE))l~RAL CLAIMS . OFFICE OF SPECIAL MASTERS
)
SHAWN SHORKEY, )
')
Petitioner, ) No. 15-768V (ECF)
) Special Master Moran 'v. } )
SECRETARY OF HEALTI-l AND ) HU1\IIAN SERVICES, )
)
Respondent. )
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STIPULATION
The parties hereby stipulate ti,) the fo llowing matte1·s:
I, Pctilioner, Shawn Shorkey, filed a petiti ot~ forvnccine compensation undel' the Natio nal Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-1 0 lo 34 (the ''Vaccine Program"). The pctitio1) seeks co1npe1isution for injuries allegedly related to petitlonel''s i·eceipt of the influenza ("flu'') vaccine, which vaccine is contained in llic Vaccine lnjmy Table-(the "Table"), 42 C.F.R. § l 00.~ (a).
2. Petitioner received n flu vaccine on or nbout November I 5, 2012.
J . The vaccine was administered within the United States.
4. Petitionc1; all eges that he suffered chronic inflnmmC\tory demyclinating po!ynem!tis (';CJDP") ns a consequence of the flu imlnuoizat ion he received on or about November 15, 20 12, and fu1ther al le$es that he suffered the res idual . ~ffects of this injliry for m9re than six m9nths.
5. Petitioner represents tl?~t there has been no pl'ior award 01· scttleine1it of u civil nction for damages on his behalf as a result of his cond itio n.
. Page 1 ofS .
6. Respondent cl~nies that the ·~u vaccine caused petitioner's alleged CIOP or any other injury and ~urthcr denies th;it his alleged ClllTCnt disnbilities nre a sequela of a vaccine-related injury.
7. Maint~ining their apove~stilt~d positions, the parties nevertheless now agree ·that the issues bet\veen them shnll be settled <lnd that 11 decision should be entered awarding the cbmpensntion described in paragraph 8 of this Stipulation.
8. As·s.oon as pnicticable after nn en try of judgment reflecting a d<;cision consistent with the terms of this Stipulation, and after petitioner has· tiled an cl~ction to receive compensation pursuant lo 42 U.S.C. § 300all-il (a){l ), the Secretnt·y of Heaith and Human Sel'vices will issue the fo lleiw_ing voccine compensati@ payment
A lump sum of $3.5 ,000.00 in the.form of a·check. pnya.blc.to petidoner, representing coinpensation for all damages that would b.e available under 42 U.S.C. § 300an-
! S(a}.
9. As soon as pn1cticable after the entry ofjudgment on entitlement in this cnsc, and after petitioner hns filed both a proper and timely election to receive cornpens<ttion pursunnt to 42 U.8.C. § 300fla-2 1(a)(l), and mi application, the parties will submit to fi.11·t her proceedings before the specia l mnste1· to aw~rd reusonable allorneys' foes ~fr1d costs incurred in proceeding upon this petition.
I 0. Petitioner and his attorney represent thot they have identified to respondent all known sollrces of pRymcnt for Items or services /Or which the Program is not pr1nrnrily liable under 42· U.S.C. § 300an-l 5(g), 1ncll1Cling State compensation ·progrnms, insurnnce policies, Federal or State health bcJJefits programs (other than Title XJX of the Social Sccul'ity Act (42 U.S.C. § I396 et seq.)), or entitie:-; _that provide health servic~s on a pL'cpAid basis.
Page -2 of5
11. Payment made pursuaril to. pnrngraph 8 of this Stipul ation and any mnounts awm'ded pmsuant to parngraph 9 wi ll be made in ctcco rdance with 42 U.S.C. § 300nn-15(i), subject to lhe ava ilabil ity of sufficient statu~o ty funds.
12. The pal'C'ies -and their attorneys fu1ther ag1'ee-and stipulate that,.except for any award for attorneys ' fees ond lit\gation costs, the money provicledpur~t1anl to this S tipul a~i on wil I be used solely for tile benefit of petilionel' as contemplated by a st1'ict constructi on of42_.U.$.C.
§ 300aa-l 5(a) and (d)~ and subject to the co1iditions . of 42 L/;S.C § 300an· . ! 5(g) and (h).
13. ln return fo1· the payments described in paragraphs 8 nnd 9, petitioner, in hi s indiv idua l copaci ty 1 nncl on behalf of his heirs, executors, adm inistrators, st·1ccessors, and assigns, docs forever irrevocably and uncomiitionolly release, acquit and discharge the United Stn1es nnd the Secretary of Hea lth and Human Sel'vi ccs from ony and all actions or causes of nclion (including agreements, judgments, claims, damages, loss of s·ervices, expenses and all demands of whatever kind or nature) that have been brought, could have been b1:ought, or coulct be tin1cly bro1_1ght in the Uni led States Court of F~dern l Claims, under the Nnti onnl Vaccin~ Injury Co mpensation Progrnm , 42 U.S.C. § 300nn~ 10 et seq., on account of, or in any way gl'owitlg out of, any and all known or unknown, suspe.Cted or unsuspected personal injmics to or de<lth of petitioner resullin g from, or alleged to have resuJfod. from; the flu vacci"nation admin istered on ot about November 15, 2012 as .alleged by petitioner in a petition fo1· vaccine compensation fi led on or about July 22, 20 1-5, in the United States Coult of Federal Clnims as petition No. 15-768V.
14. If petitioner sholll<l die prior to entry of jt1dgmc.nt, this agreement shall be voidable upon proper notice to the Court on belrn lf of either or both of the parties.
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