Sn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS No. 19-0022V UNPUBLISHED
REBECCA SMITH, Chief Special Master Corcoran Petitioner, Filed: September 8, 2021 V. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Tetanus HUMAN SERVICES, Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Injury Related to Respondent. Vaccine Administration (SIRVA)
Leah Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Sarah Duncan, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION '
On January 3, 2019, Rebecca Smith filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, ef seg.* (the “Vaccine Act”). Petitioner alleges that she suffered a right shoulder injury related to vaccine administration (SIRVA) after receiving a Tdap vaccine on August 31, 2017. Petition at 1; Stipulation, filed at September 7, 2021, fff 2, 4. Petitioner further alleges that she suffered the right SIRVA within the time period set forth in the Table and that she experienced the residual effects of her injury for more than six months. Petition at {If 1, 8: Stipulation at J] 4. Respondent denies that Petitioner sustained a SIRVA Table injury, denies that Petitioner's alleged shoulder injury was caused-in-fact by the Tdap vaccine, and denies that the Tdap vaccine caused Petitioner any other injury or her current condition. Stipulation at J 6.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, | am required to post it on the United States Court of Federal Claims’ website in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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Nevertheless, on September 7, 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.
Pursuant to the terms stated in the attached Stipulation, | award the following compensation:
A lump sum of $112,000.00 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
) REBECCA SMITH, ) ) Petitioner, ) ) No. 19-22V Vv. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) STIPULATION
The parties hereby stipulate to the following matters:
1. Rebecca Smith, 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 a tetanus, diphtheria, and acellular pertussis (“Tdap”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).
2. Petitioner received the Tdap vaccine in her right shoulder on August 31, 2017.
3. The vaccination was administered within the United States.
4, Petitioner alleges that she suffered a right Shoulder Injury Related to Vaccine Administration (“SIRVA”) within the time period set forth in the Table, and further alleges that she experienced the residual effects of her injury for more than six months.
5. 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.
6. Respondent denies that petitioner sustained a SIRVA Table injury, denies that petitioner’s alleged shoulder injury was caused-in-fact by the Tdap vaccine, and denies that the Tdap vaccine caused petitioner any other injury or her current condition.
7. Maintaining their above-stated 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 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 $112,000.00 for pain and suffering, past lost earnings, and past
unreimbursable medical expenses 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.
Free access — add to your briefcase to read the full text and ask questions with AI
Sn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS No. 19-0022V UNPUBLISHED
REBECCA SMITH, Chief Special Master Corcoran Petitioner, Filed: September 8, 2021 V. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Tetanus HUMAN SERVICES, Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Injury Related to Respondent. Vaccine Administration (SIRVA)
Leah Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Sarah Duncan, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION '
On January 3, 2019, Rebecca Smith filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, ef seg.* (the “Vaccine Act”). Petitioner alleges that she suffered a right shoulder injury related to vaccine administration (SIRVA) after receiving a Tdap vaccine on August 31, 2017. Petition at 1; Stipulation, filed at September 7, 2021, fff 2, 4. Petitioner further alleges that she suffered the right SIRVA within the time period set forth in the Table and that she experienced the residual effects of her injury for more than six months. Petition at {If 1, 8: Stipulation at J] 4. Respondent denies that Petitioner sustained a SIRVA Table injury, denies that Petitioner's alleged shoulder injury was caused-in-fact by the Tdap vaccine, and denies that the Tdap vaccine caused Petitioner any other injury or her current condition. Stipulation at J 6.
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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Nevertheless, on September 7, 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.
Pursuant to the terms stated in the attached Stipulation, | award the following compensation:
A lump sum of $112,000.00 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
) REBECCA SMITH, ) ) Petitioner, ) ) No. 19-22V Vv. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) STIPULATION
The parties hereby stipulate to the following matters:
1. Rebecca Smith, 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 a tetanus, diphtheria, and acellular pertussis (“Tdap”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).
2. Petitioner received the Tdap vaccine in her right shoulder on August 31, 2017.
3. The vaccination was administered within the United States.
4, Petitioner alleges that she suffered a right Shoulder Injury Related to Vaccine Administration (“SIRVA”) within the time period set forth in the Table, and further alleges that she experienced the residual effects of her injury for more than six months.
5. 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.
6. Respondent denies that petitioner sustained a SIRVA Table injury, denies that petitioner’s alleged shoulder injury was caused-in-fact by the Tdap vaccine, and denies that the Tdap vaccine caused petitioner any other injury or her current condition.
7. Maintaining their above-stated 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 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 $112,000.00 for pain and suffering, past lost earnings, and past
unreimbursable medical expenses 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, administrators, 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 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 Tdap vaccination administered on August 31, 2017, as alleged by petitioner in a petition for vaccine compensation filed on or about January 3, 2019, in the United States Court of Federal Claims as petition No. 19-22V.
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 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 parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further 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.
17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the Tdap vaccine caused petitioner’s alleged shoulder injury or any other injury.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
~™ ~~ ~~ ~~ NO Respectfully submitted,
PETITIONER:
REBECCA SMITH
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: LEAH V. D N HEATHER L. PEARLMAN
Law Offices ofLeah’V. Durant, PLLC Deputy Director
1717 K Street, NW, Suite 900 Torts Branch
Washington, DC 20006 Civil Division
Tel: (202) 775-9200 U.S. Department of Justice
Email: Idurant@durantllc.com 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: GAN C Bunton Dake Wuethlanr, DNSe, for S hey Kk adbeu LPeusAn— TAMARA OVERBY SARAH C. DUNCAN Acting Director, Division of Injury Trial Attorney Compensation Programs Torts Branch Healthcare 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, 08N146B Tel: (202) 514-9729 Rockville, MD 20857 Email: sarah.c.duncan@usdoj.gov
Dated: oq log/2or