In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS
******************** * DANNY WILSON, * * No. 14-411V Petitioner, * Special Master Christian J. Moran * v. * Filed: June 24, 2016 * SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine; AND HUMAN SERVICES, * shoulder injury related to vaccine * administration (“SIRVA”). Respondent. * ******************** * Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner; Traci R. Patton, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On June 24, 2016, the parties filed a joint stipulation concerning the petition for compensation filed by Danny Wilson on May 13, 2014. In his petition, petitioner alleged that the influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on or about October 22, 2012, caused him to suffer a shoulder injury related to vaccine administration (“SIRVA”). 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 states there is not a preponderance of evidence demonstrating that petitioner’s condition is due to a factor unrelated to vaccination.
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. Accordingly, petitioner is entitled to compensation, under the terms of the Vaccine Act, for his SIRVA as described in the 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 $175,000.00 in the form of a check payable to petitioner, Danny Wilson. 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 14-411V according to this decision and the attached stipulation.2
Any questions may be directed to my law clerk, Shannon Proctor, at (202) 357-6360.
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.
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
DANNY WILSON,
Petitioner, No. 14-411V v. Special Master Moran ECF SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. 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 on or about October 22, 2012.
3. The vaccine was administered within the United States.
4. Petitioner suffered a shoulder injury related to vaccine administration (SIRVA).
5. Petitioner experienced the residual effects of his injury for more than six months.
6. There is not a preponderance of evidence demonstrating that petitioner’s condition is
due to a factor unrelated to vaccination.
7. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of his condition. 8. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine Act
for his SIRVA. Therefore, a decision should be entered awarding the compensation described in
Paragraph 9 of this stipulation.
9. 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 a
lump sum of $175,000.00 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).
10. 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.
11. Petitioner and his 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.
12. Payment made pursuant to paragraph 9 and any amounts awarded pursuant to
paragraph 10 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i),
subject to the availability of sufficient statutory funds.
2 13. 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).
14. In return for the payments described in paragraphs 9 and 10, petitioner, in his
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS
******************** * DANNY WILSON, * * No. 14-411V Petitioner, * Special Master Christian J. Moran * v. * Filed: June 24, 2016 * SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine; AND HUMAN SERVICES, * shoulder injury related to vaccine * administration (“SIRVA”). Respondent. * ******************** * Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner; Traci R. Patton, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On June 24, 2016, the parties filed a joint stipulation concerning the petition for compensation filed by Danny Wilson on May 13, 2014. In his petition, petitioner alleged that the influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on or about October 22, 2012, caused him to suffer a shoulder injury related to vaccine administration (“SIRVA”). 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 states there is not a preponderance of evidence demonstrating that petitioner’s condition is due to a factor unrelated to vaccination.
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. Accordingly, petitioner is entitled to compensation, under the terms of the Vaccine Act, for his SIRVA as described in the 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 $175,000.00 in the form of a check payable to petitioner, Danny Wilson. 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 14-411V according to this decision and the attached stipulation.2
Any questions may be directed to my law clerk, Shannon Proctor, at (202) 357-6360.
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.
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
DANNY WILSON,
Petitioner, No. 14-411V v. Special Master Moran ECF SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. 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 on or about October 22, 2012.
3. The vaccine was administered within the United States.
4. Petitioner suffered a shoulder injury related to vaccine administration (SIRVA).
5. Petitioner experienced the residual effects of his injury for more than six months.
6. There is not a preponderance of evidence demonstrating that petitioner’s condition is
due to a factor unrelated to vaccination.
7. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of his condition. 8. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine Act
for his SIRVA. Therefore, a decision should be entered awarding the compensation described in
Paragraph 9 of this stipulation.
9. 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 a
lump sum of $175,000.00 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).
10. 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.
11. Petitioner and his 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.
12. Payment made pursuant to paragraph 9 and any amounts awarded pursuant to
paragraph 10 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i),
subject to the availability of sufficient statutory funds.
2 13. 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).
14. In return for the payments described in paragraphs 9 and 10, petitioner, in his
individual capacity, and on behalf of his 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 flu vaccination administered on October 22, 2012, as
alleged by petitioner in a petition for vaccine compensation filed on or about May 13, 2014, in
the United States Court of Federal Claims as petition No. 14-411V.
15. 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.
16. 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.
3 17. 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 10 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.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
4 Respectfully submitted,
PETITIONER:
ATrORNEYOFRECORDFOR AUTHORIZED REPRSENTATIVE PETITIONER:
_ OF THE ATTORNEY GENERAL:
!~ SL RICHARD GAGE eei
AITORNEY OF RECORD FOR RESPONDENT:
~'1(.fJ~ NARAY AIR, M.D. TRACI R. PATTON Acting Director, Division of Injury Senior Trial Attorney Compensation Programs (DICP) Torts Branch Hcalthcare Systems Bureau Civil Division • Health Resources and Services Administration U.S. Department of Justice U.S. Department of Health and Human Services P.O. Box 146 5600 Fishers Lane Benjamin Franklin Station Parklawn Building, Mail Stop 08N 1468 Washington, DC 20044-0146 Rockville, MD 20857 Tel: (202) 353-1589