Danger v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-278V Filed: April 12, 2018 UNPUBLISHED

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

John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner.

Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1 Dorsey, Chief Special Master: On February 28, 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"), resulting from an influenza (“flu”) vaccination she received on September 24, 2015. Petition at 1; Stipulation, filed April 10, 2018, at ¶ 2-4.

Petitioner further alleges that she experienced the residual effects of this injury for more than six months. Petition at 6; Stipulation at ¶ 4. “Respondent denies that the flu vaccine administered on or about September 24, 2015, is the cause of petitioner’s alleged SIRVA and/or any other injury or her current condition.” Stipulation at ¶ 6.

Nevertheless, on April 10, 2018, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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). 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.

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). 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 $50,000.00 in the form of a check payable to petitioner.

Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under 42 U.S.C. § 300aa-15(a). Id. 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.

INTHE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MAST,ERS

) DESIREE DANGER, ) ) Petitioner, ) ) No. 17·278V (ECF) v. ) Chief Special Master Dorsey ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. )

STIPULATION The parties hereby stipulate to the following matters: l, Desiree Danger, petitioner, flied a petition for vaccine compensation under the National Vaccine Injury Co1npensation Program, 42 U.S.C. §§ 300aa�l0 to -34 (the "Vaccine Progra1n"). 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. § l00.3(a).

2. Petitione!' received a flu vaccination on or about Septe1nber 24, 20 l 5.

3. The vaccine was administered within the United States.

4. Petitioner alleges that the flu vaccine caused her to develop a Shoulder Injury Related to Vaccine Adn1inistration ("SJRVA"). Petitioner further alleges that she experienced the residual effects of this injury for more than six months.

5. Petitioner represents that there has been no prior award or settle1nent of a civil action for damages as a result of her condition.

6. Respondent denies that the flu vaccine administered on or about September 24, 20 IS, is the cause of petitioner's alleged SIRVA and/or any other injury or her current condition.

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

· issues betwet::n 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 entl'Y ofjudgn1ent reflecting a decision consistent with the tenns of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S,C. § 300aa�2l(a)(l), the Secretary of Health-and Hu1nan Services will issue the following vaccine compensation pay1nent: A lutnp sum of $50,000.00 in the forln of a check payable to petitioner. This a1nount represents co1npensation for all damages that would be available under 42 U.S.C. § 300aa-I5(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�2J(a)(I), and an application, the parties will submit to further proceedings before the special 111aster to award reasonable attorneys' fees and costs incurred in proceeding upon this petition.

10. Petitioner and her attorney 1epresent that they have identified to respondent all known sources of payment for ite1ns or services for which the Progra1n is not pri1narily liable under 42 U.S.C. § 300aa�l5(g), including 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 entities that provide health services on a pre..paid basis.

11. Payment 1nade pursuant to paragraph 8 of this Stipulation, and any amount awarded pursuant to paragraph 9 of this Stipulation, wilt be made in accordance with 42 U.S,C, § 300aa- S(i), subject to the availability of sufficient statutory funds.

J 2, 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.

§ JOOaa-15(g) and (h).

13, In return for the pay1nents described in paragraphs 8 and 9, petitionel', in her individual capacity, and on behalf of her heirs, executors, administrators, successors and/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 agreeinents, judgments, claims, damages, Joss of services, expenses and all

demands of whatever kind or nature) that have beeu broughl, 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-l0 et seq., on account of, or in any way growing out of, any ahd all known or unknown, suspected or unsuspected pe!'sonal htjuries to or death of

petitioner resulting fron1, or alleged to have resulted from, the flu vaccination administered on or about September 24, 2015, as alleged by petitioner in a petition for vaccine compensation filed .

on or about February 28, 2017, in the United States Court of Federal Claims as petition No. 17- 278V.

14. Ifpetitionct' should die prior to entry of judgment, this agreement shall he voidable upon proper notice to the Court on behalf of either or both of the pal'ties.

15, If the special 1naster fails to issue a decision in complete conformity with the tenn s of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a

J decision that is In complete conformity with the terms of this Stipulation, then the parties' settleinent and this Stipulation sha[J be voidable at the sole discretion of either party.

16. This Stipulation expresses a full and co1nplete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Inj ury Act of 1986i except as otherwise noted in paragrt'lph 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 berei11 expressly stated and clearly agreed to. The parties furtller agree and understand that the award described in this Stipulation may reflect a compromise of the parties' t-espective 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 ite1ns of co1npensation sought, is not grounds to modify or revise this agreement.

17. This Stipulation sha!I not be construed as an admission by the United States 01·the Secretary off-lealth and I-Iuman Services that the flu vaccine caused petitioner's alleged SIRVA, or any other injury or her current condition.

l8. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assJgns.

END OF STIPULATION I I I I I I I ., I I I I I I I I

Respectfully submitted, PETITlONER:

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITlO ER:

�c:· RINE B. REEVES Deputy Director Torts Branch Civil Division U.S. Depal'tment of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED R ATTORNEY OF RECORD FOR OFTHESECR A RESPONDENT: AND HU R

IR,M.D.

Director, ivision oflnjury Trial Attorney Compensation Programs Torts Branch Healthcare Systems Bureau Civil Division U.S. Department of Health U.S. Department of Justice and Human Services P.O. Box 146 5600 Fishers Lane Benjamin Franklin Station Parklawn Building,Mail Stop 08Nl46B Washington, DC 20044-0146 Rockville, MD 20857 Tel: (202) 616-4118

Dated: 4/Jopo l'O