In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1412V UNPUBLISHED
KATHIE SMITH, Chief Special Master Corcoran
Petitioner, Filed: March 15, 2022 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)
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On September 13, 2019, Kathie Smith 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”) caused-in-fact by the influenza (“flu”) vaccine she received on October 6, 2016. Petition at 1, ¶ 2, 47; Stipulation, filed Mar. 15, 2022, at ¶¶ 1-2, 4. Petitioner further alleges she received the vaccine in the United States, that she continues to suffer the residual effects of her SIRVA more than six months post-vaccination, and that neither she nor any other person has filed a civil action or received compensation for her SIRVA. Petition at ¶¶ 2, 17-18; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner’s alleged left shoulder injury or any other injury or condition was caused by her receipt of the flu vaccine, and further denies that [P]etitioner sustained a SIRVA Table injury.” Stipulation at ¶ 6.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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, I agree that the identified material fits within this definition, I will redact such material from public access. 2National 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 March 15, 2022, 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 $41,280.02 as follows:
1. A lump sum of $284.99 for past unreimbursed medical expenses in the form of a check payable jointly to Petitioner and Active Physical Therapy;3
2. A lump sum of $885.81 for past unreimbursed medical expenses in the form of a check payable jointly to Petitioner and iMotion Physical Therapy;4
3. A lump sum of $109.22 for past unreimbursed medical expenses in the form of a check payable jointly to Petitioner and Summit Orthopedics;5 and
4. A lump sum of $40,000.00 for all remaining compensation which would be available under Section 15(a) in a check payable to Petitioner.
Stipulation at ¶ 8.
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.6
IT IS SO ORDERED.
s/Brian H. Corcoran Brian H. Corcoran Chief Special Master
3 Petitioner agrees to endorse this payment to Active Physical Therapy. Stipulation at ¶ 8. 4 Petitioner agrees to endorse this payment to iMotion Physical Therapy. Id.
5 Petitioner agrees to endorse this payment to Summit Orthopedics. Id.
6 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
) KA THIE SMITH, ) ) Petitioner, ) ) No. 19-1412V V. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ________________ .)
STIPULATION
The parties hereby stipulate to the following matters:
1. Kathie 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 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 flu vaccination in her left arm on October 6, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a left Shoulder Injury Related to Vaccine
Administration ("SIRVA") within the Table time frame, and that she experienced residual 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
for damages on her behalf as a result of her condition. 6. Respondent denies that petitioner's alleged left shoulder injury or any other injury or
condition was caused by her receipt of the flu vaccine, and further denies that petitioner
sustained a SIRVA Table injury.
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)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payments:
a. a lump sum of$284.99, representing petitioner's past unreimbursed medical expenses, in the form of a check payable jointly to petitioner and Active Physical Therapy.
Petitioner agrees to endorse this payment to Active Physical Therapy.
b. a lump sum of $885.81, representing petitioner's past unreimbursed medical expenses, in the form of a check payable jointly to petitioner and iMotion Physical Therapy.
Petitioner agrees to endorse this payment to iMotion Physical Therapy.
c. a lump sum of$ I 09.22, representing petitioner's past unreimbursed medical expenses, in the form of a check payable jointly to petitioner and Summit Orthopedics.
Petitioner agrees to endorse this payment to Summit Orthopedics.
d. A lump sum of $40,000.00 in the form of a check payable to petitioner.
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1412V UNPUBLISHED
KATHIE SMITH, Chief Special Master Corcoran
Petitioner, Filed: March 15, 2022 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)
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On September 13, 2019, Kathie Smith 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”) caused-in-fact by the influenza (“flu”) vaccine she received on October 6, 2016. Petition at 1, ¶ 2, 47; Stipulation, filed Mar. 15, 2022, at ¶¶ 1-2, 4. Petitioner further alleges she received the vaccine in the United States, that she continues to suffer the residual effects of her SIRVA more than six months post-vaccination, and that neither she nor any other person has filed a civil action or received compensation for her SIRVA. Petition at ¶¶ 2, 17-18; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner’s alleged left shoulder injury or any other injury or condition was caused by her receipt of the flu vaccine, and further denies that [P]etitioner sustained a SIRVA Table injury.” Stipulation at ¶ 6.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I 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, I agree that the identified material fits within this definition, I will redact such material from public access. 2National 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 March 15, 2022, 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 $41,280.02 as follows:
1. A lump sum of $284.99 for past unreimbursed medical expenses in the form of a check payable jointly to Petitioner and Active Physical Therapy;3
2. A lump sum of $885.81 for past unreimbursed medical expenses in the form of a check payable jointly to Petitioner and iMotion Physical Therapy;4
3. A lump sum of $109.22 for past unreimbursed medical expenses in the form of a check payable jointly to Petitioner and Summit Orthopedics;5 and
4. A lump sum of $40,000.00 for all remaining compensation which would be available under Section 15(a) in a check payable to Petitioner.
Stipulation at ¶ 8.
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.6
IT IS SO ORDERED.
s/Brian H. Corcoran Brian H. Corcoran Chief Special Master
3 Petitioner agrees to endorse this payment to Active Physical Therapy. Stipulation at ¶ 8. 4 Petitioner agrees to endorse this payment to iMotion Physical Therapy. Id.
5 Petitioner agrees to endorse this payment to Summit Orthopedics. Id.
6 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
) KA THIE SMITH, ) ) Petitioner, ) ) No. 19-1412V V. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ________________ .)
STIPULATION
The parties hereby stipulate to the following matters:
1. Kathie 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 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 flu vaccination in her left arm on October 6, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a left Shoulder Injury Related to Vaccine
Administration ("SIRVA") within the Table time frame, and that she experienced residual 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
for damages on her behalf as a result of her condition. 6. Respondent denies that petitioner's alleged left shoulder injury or any other injury or
condition was caused by her receipt of the flu vaccine, and further denies that petitioner
sustained a SIRVA Table injury.
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)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payments:
a. a lump sum of$284.99, representing petitioner's past unreimbursed medical expenses, in the form of a check payable jointly to petitioner and Active Physical Therapy.
Petitioner agrees to endorse this payment to Active Physical Therapy.
b. a lump sum of $885.81, representing petitioner's past unreimbursed medical expenses, in the form of a check payable jointly to petitioner and iMotion Physical Therapy.
Petitioner agrees to endorse this payment to iMotion Physical Therapy.
c. a lump sum of$ I 09.22, representing petitioner's past unreimbursed medical expenses, in the form of a check payable jointly to petitioner and Summit Orthopedics.
Petitioner agrees to endorse this payment to Summit Orthopedics.
d. A lump sum of $40,000.00 in the form of a check payable to petitioner. This amount represents compensation for all remaining 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
2 U.S.C. § 300aa-21(a)(l), 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 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-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, 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
3 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 flu vaccine administered on or about October 6, 2016, as
alleged by petitioner in a petition for vaccine compensation filed on September 3, 2019, in the
United States Court of Federal Claims as petition No. 19-1412V.
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 flu vaccine caused petitioner to suffer a
4 shoulder injury or her current disabilities, or any other injury or condition, or that petitioner
sustained an injury contained in the Vaccine Injury Table.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
I
5 Respectfully submitted,
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:
- e~ HEATifER L. PEARLMAN Deputy Director Torts Branch Civil Division U.S.DepartmentofJustice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OFTHESECRETARYOFBEALTH RESPONDENT: AND HUMAN SERVICES: Olgltally signed by George R. George R. Grtmes-S14 (p. ~ H - ~ Date: 2022.02.17 14:59:41 Grimes-S14 -05'00' ~~L()~ CDR GEORGE REED GRIMES, MD, MPH CAMILLE M. COLLETT Director, Division of Injury Trial Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justice Health Resources and Services P.O. Box 146 Administration Benjamin Franklin Station U.S. Department of Health Washington, DC 20044-0146 and Human Services Tel: (202) 616-4098 5600 Fishers Lane, 08Nl46B Email: Camille.M.Collett@usdoj.gov Rockville, MD 208S7
Dated: oa {1s ]"Z,6'l/L