Burke v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-750V Filed: February 13, 2019 UNPUBLISHED

PENNY LYNN BURKE, 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.

Douglas Lee Burdette, Burdette Law, PLLC, North Bend, WA, for petitioner.

Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1 Dorsey, Chief Special Master: On June 6, 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 the influenza (“flu”) vaccine she received on October 11, 2016, caused her to suffer a right shoulder injury. Petition at 1; Stipulation, filed February 13, 2019, at ¶¶ 2, 4. Petitioner further alleges that her shoulder injury symptoms have persisted for more than six months. Petition at 2. “Respondent denies that the flu vaccine caused petitioner to suffer a right shoulder injury, or any other injury or condition.” Stipulation at ¶ 6.

Nevertheless, on February 13, 2019, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The 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 Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website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).

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). 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 $143,000.00 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 § 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

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.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF' SPECIAL MASTERS ) PENNY LYNN BURKE, ) ) Petitioner. v. ) No. 17-750V ) Chief Special Master Dorsey SECRETARY OF HEALTH AND HlJMAN )) ECF SERVICES, ) _______________ Respondent. ))

STfPULATION The parties hereby stipulate to the following matters: I. Penny Lynn Burke, petitioner, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 et seq. (the "Vaccine Program"). The petition seeks compensation for injuries related to petitioner's receipt of the influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), C.f.R. § 100.3(a).

2. Petitioner receive<l a flu vaccination on October 11, 2016.

3. The vaccine was administered within the United States.

4. Petitioner alleges that the flu vaccine caused her to suffer a right shoulder injury.

5. Pctitioiler 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 the flu vaccine caused petitioner to suffer a right shoulder injury, or any other injury or condition.

7. Maintaining their above-stated positions, the parties nevertheless now agree the issues between them shall be settled and that a decision should he entered awarding the compensation described in paragraph 8 of this Stipulation.

8. As soon as practicable after an entry of judgment reflecting a decision consistei the terms of this Stipulation, and after petitioner has tiled an election to receive compensa pursuant to 42 U.S.C. § 300aa-2 l ( a)( 1), the Secretary of Health and Human Services will the following vaccine compensation payment: a lump sum of$143,000.00 in the fonn of a check payable to petitioner. Thi~- amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

9. As soon as practicable after the entry ofjudgment on entitlement in this case, a petitioner has filed both a proper and timely election to receive compensation pursuant to U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceeding~ the special master to award reasonable attorneys' foes and costs incurred in proceeding ur petition.

I 0. Petitioner and her attorney represent that compensation to be provided pursua this Stipulation is not for any items or services for which the Program is not primarily liat under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonab expected to be made under any State compensation programs, insurance policies, Federal 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 ofthis Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), to the availabilitv 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, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 lJ .S.C. § 300aa-l 5(a) and (d), and su~ject to the conditions of 42 U.S .C. § 300aa-l 5(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. executor~. administrators, successors or assigns. does forever ir.revocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and an 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 o~ 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 t1u vaccination admini.stered on or around October I I, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or about June 6, 2017, in the United States Court ofFederal Claims as petition No. 17-750V.

14. If petitioner should die prior to entry of judgment, thb agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties.

15. If the special maste1· fails to issue a decision in complete confonnity 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 confom1ity 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 dwnages, 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's alleged right shoulder injury, or any other injury or condition.

I 8. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

END Of STlPULATION

I I I I I I I I I I I I I I I I I I

Respectfully submitted.

PETITIONER:

ATTORNEY OF RECORD FOR At.:THORIZED REPRSE~TATlVE PETITIONER: OF THE ATTORNEY GENERAL:

f~~ LEEBURDE E C~ RINE E. REEVES /Btu·dette Law, PLLC Deputy Director Main Avenue South, Ste l 07 #3 33 Torts Branch North Bend, WA 98045 Civil Division Tel: (206) 441-5597 U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES:

~.~& ~~ I / ._--, ,I ~~:c_~~.:}!'~:'_4:'-/J,:v(y1_,__ NARAYAN NAIR, M.D. ALEXIS B. BABCOCK Director, Division of Injury Assistant Director Compens-'ltion Programs (DICP_) Torts Branch Healthcare S:,,stems 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 Parkla,vr1 Building, Mail Stop 08N 146B Washington, DC 20044-0146 Rockville, MD 20857 Tel: (202) 6 l 6-7678

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