Walker v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-1509V Filed: August 19, 2019 UNPUBLISHED

STEPHANIE WALKER,

Petitioner, v. Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza SECRETARY OF HEALTH AND (Flu) Vaccine; Shoulder Injury HUMAN SERVICES, Related to Vaccine Administration (SIRVA) Respondent.

John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner. Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

On October 13, 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 she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an October 10, 2015 influenza (“flu”) vaccination. Petition at 1; Stipulation, filed August 16, 2019, at ¶¶ 1-4. Petitioner further alleges that the vaccine was administered in the United States, that she experienced the residual effects of her condition for more than six months, and that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her alleged injury. Petition at 1, 9; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused petitioner’s alleged

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website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). 2National 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). shoulder injury, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury. ” Stipulation at ¶ 6.

Nevertheless, on August 16, 2019, 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 $88,000.00 in the form of a check payable to petitioner. Stipulation at ¶ 8.a. This amount represents compensation for all items of damages that would be available under § 15(a), except as set forth in paragraph 8.b.; and

• A lump sum of $51.88, which represents reimbursement of a Medicaid lien for services rendered on behalf of petitioner, in the form of a check payable jointly to petitioner and

MO HealthNet Division Department of Social Services P.O. Box 1116 Jefferson City, MO 65102 DCN: 32767024

Petitioner agrees to endorse this payment to the State.

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.

2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

STEPHANIE WALK.ER,

Petitioner, No. 17-1509V Chief Special Master Dorsey v. ECF

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

STIPULATION

The parties hereby stipulate to the following matters:

1. Stephanie Walker (''petitioner"), ftled a petition for vaccine compensation Wtder 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 vaccine ~ contained in the Vaccine Injury Table (the

"Table"), 42 C.F.R. § 100.3(a)

2. Petitioner received a flu vaccine on October 10, 2015.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she sustained a shoulder injury related to vaccine administration

("SIRVA") within the time period set forth in the Table, or in the alternative, that her alleged

shoulder injury was caused by the vaccine. She further alleges that she experienced the residual

effects of this condition for more than six months.

l 5. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on her behalf as a resuh of her alleged injw-y.

6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the

vaccine caused petitioner's alleged shoulder injury, or any other 'injury; and denies that her

current condition is a sequelae of a vaccine-related injury.

7. Maintaining their above-stated positions, the parties nevertheless now agree that the

issues between them shall be settled and that a dec~ion should be entered awarding the

compensation descnbed in paragraph 8 of this Stipulation.

8. As soon as practi:able 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

pw-suant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

a. A lump sum of $88,000.00 i1 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), except asset forth in paragraph 8.b; and

b. A lwnp sum ofSSI.88, which amount represents reimbursement of a Medicaid lien for services rendered on behaIf of petitioner, in the fonn of a check payable jointly to petitioner and

MO HealthNet Division Department of Social Services POBox 1116 Jefferson City, MO 65102 DCN : 32767024

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-2l(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, inslU'ance 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 and any amounts awarded pursuant to

paragraph 9 of tlm Stipulation will be made in accordance with 42 U.S.C. § 300aa-IS(i), subject

to the availability of sufficient statutory funds.

12. The parties and their attorneys further agree and stipulate that, except for any a~ard

for attorney's 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-l S(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

3 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 flu vaccination administered on October 10, 2015, as

alleged in a petition for vaccine compensation filed on or about October 13, 2017, in the United States Court of Federal Claims as petition No. 17-1509V.

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 dec~ion in complete conformity with the terms

of th.is Stipulation or if the Court of Federal Claims fails to enterjudgment in confonnity 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 W1der the National Childhood Vaccine Injury :A,ct 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

4 Secretary of Health and Human Services that the flu vaccine caused petitioner's aDeged injury or

any other injury or her current disabilities, or that petitioner suffered an injury contained in the

Vaccine Injury Table.

l 8. 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,

PETITIONER:

-

ATTORNEY OF RECORD FOR A UTJIORIZED REPRESENTATIVE PETITIO~ER: OF THE ATTORI\EY GENERAL:

JO H IEl.AW,P.C. Deputy Direcwr 2608 Hibernia St. Tons Brauch Dallas, TX 75204 Ci1111 DivistOll (214) 622-6340 U.S. Department of J\l\tice P.O Box 146 Dcojamin Franklin Station Washington, DC 20044-0)46

AUTHORIZED Rf.~PRJ.:SE~TATIVE ATTORNEYOFRECOKDFOR O•' THESECRETAR\' OF HEALTH RESPONDENT: AND Hl.iMAN SERVICES:

uJtVl.d s6~ J!'_,,, TAMARA OVERBY Aeling Director, Division of Injury · Attorney Compen~tion Programs Tons Branch Healthcare Systems Bureau C ivil Divis10n U. S Department of Health and U. S. Department of Ju.,;tice Humans Sctviccs P.O. Box 146 5600 F~hc~ Lane Denjamm franklin Station Parklawn Building, Mail Stop 08N 1468 Washington, DC 20044-0146 Rockville, MD 20857 (202) 305-1586