United States Court of Federal Claims, 2019

Laclair-Montague v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided March 13, 2019 · Nora Beth Dorsey

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17-0577V Filed: February 7, 2019 UNPUBLISHED

LEORA LACLAIR-MONTAGUE,

Petitioner, Special Processing Unit (SPU); Joint v. Stipulation on Damages; Tetanus

Diphtheria acellular Pertussis (Tdap) SECRETARY OF HEALTH AND Vaccine; Shoulder Injury Related to HUMAN SERVICES, Vaccine Administration (SIRVA)

Respondent.

Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner. Gabrielle Manganiello Fielding, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

On April 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 left shoulder injuries caused-in-fact by the tetanus, diphtheria, acellular pertussis (“Tdap”) vaccination she received on December 14, 2015.3 Petition at 1, ¶¶ 2, 15; Stipulation, filed Feb. 7, 2019, at ¶¶ 1-2, 4. Petitioner further alleges that she received the vaccination in the United States, that she suffered the effects of her injury for more than six months, and that neither she nor any other party has filed a civil action or received compensation for her injuries, alleged as vaccine caused. Petition at ¶¶ 2, 15-17; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused petitioner to suffer from a left shoulder injury, or any other injury or condition.” Stipulation at ¶ 6.

Nevertheless, on February 7, 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 $90,821.53 as follows:

1. A lump sum payment of $90,525.00 in the form of a check payable to petitioner; and

2. A lump sum payment of $296.53, for reimbursement of a Medicaid lien, in the form of a check payable jointly to petitioner and

HMS, Inc. Casualty Recovery Unit P.O. Box 167887 Irving, TX 75016-7887 Attn: Steven Noblett

Petitioner agrees to endorse this check to HMS, Inc.

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.4 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

4 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.

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). 2 National 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). 3 As noted by the parties in the stipulation, although the petition indicates the Tdap vaccination was administered on December 7, 2015, the medical records show it was administered on December 14, 2015. See, e.g., Exhibit 1 (record of vaccination included in the record from petitioner’s urgent care visit on December 14, 2015); Exhibit 2 at 14-17 (complete record from that visit).

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