Mahayni v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-0684V UNPUBLISHED

BONNIE MAHAYNI, Chief Special Master Corcoran Petitioner, Filed: November 13, 2019 v. SECRETARY OF HEALTH AND Special Processing Unit (SPU); Joint HUMAN SERVICES, Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury Respondent. Related to Vaccine Administration (SIRVA)

Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.

Glenn Alexander MacLeod, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION 1 On May 15, 2018, Bonnie Mahayni 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 right shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine received on September 7, 2017. Petition at 1; Stipulation, filed November 13, 2019, at ¶¶ 2, 4.

Petitioner further alleges that the vaccine was administered in the United States, that she suffered the residual effects of her injury for more than six months, and there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition. Petition at 1, 5-6; Stipulation at ¶¶ 3-5. “Respondent denies petitioner sustained a Table SIRVA; denies that the flu vaccine caused petitioner’s alleged right

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). This means it 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 invas ion of privacy.

If, upon review, I agree that the identified material fits within this definition, I 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). shoulder injuries, or any other injury; and further denies that her current disabilities are a sequela of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on November 13, 2019, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein.

Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $40,000.00 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. I approve 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/Brian H. Corcoran Brian H. Corcoran 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.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFF[CE OF SPECJAL MASTERS ·••*••··••*•*•~*••·-····· * BONNIE MAHAYNI, • • Petitionor, * Ill v. ".. No. I S.684V (ECF) CHIRP SP.EClAL MASTBR " BRIAN H. CORCORAN SF..CRETARY OF HEALTH * AND HUMAN SERVJCIS, • Respondent * ·•~***~**•*•*~-•~«$¢*~*~• $'fIPUL~'.n~ The partie., hereby stipulate to the following mauers: I. Pttitionerflled a petition for vaccine compensation undertbe National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-J0 to 34 (the ..Vaccine Program"). The petition se&l<s compensation for injuries allegedly related to petitioner's receipt of trivalent influenza (..flu') vacciJJe, which vaccille is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. §100.3(a).

2. Petitioner received the tlu wccine on or about September 7, 2017.

3. The vaccine was administered withfn me United Stares.

4. Petitioner alleges that. she suffered a right shoulder injury related to vaecine adminislration (SlRV A), including right shoulder adhesive capsulitis, partial-thickness &earing, tcndinopathy, bursitis, shoulder joint osteoartbritis, acromioclavicular joint arthrosis and r~onal pain syndrome, as a coMCq\lence of the filt Immunization she received on or about Soptember 7,

Page I of5 2017, and 1urther alleges that she ~uffered the resjdual effcccs ofthis injury for more than aix. monthi.

5. Petitioner represents that thcr~ has been no prior award or settlement of a civil action for damage.11 on ber behalf u a result of her conditi<:m.

6. Respondent denies petitioner sustained a Table SJRVA; dcmie& that the Du vaccine caused petitioner's alleaed right shoulder injuries, or any other jnjury; and further denies that h<:r current di$abiliries are a sequelft of a V8"ine-related injury.

7. Mainta.ining their abov~stated positions, the pa11ies nevertheless now agree that the is,uea between tbem 11ball be settled and that a decision ahould be enr.ered awal'ding the compensation described in para!Jraph 8 of U1is Stipulation.

8, As soon as practicable sfter an entry ofjudgment reflecting a decision consistent with tile term, of this Stipulation. and after petitioner has filed an election to receive compensation plll'Suant to 42 U.S.C. § 300aa-21(a)(I}, tho Secretary of Health and Human Sffliices will issue the following vaccina ccmpensation payment: A lump sum of $40,000.00 which amount represents oompe11satio11 for all elements of damages available to petitioner under 42 U.S.C. § 300aa-l S(a), in the form of a check puyable to petitioner.

9. Ju soon as practicable a~r the en«ry ofjudgment on entitle11umt in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300ia-2l(a)(l), and an application, the parties will submit to further proceodings bri'ore the special mastor to award reasonable attorneys• fees and costs incurred in proceeding upon this petition.

10. Petitioner and her attorney represent that they have identified to respond~t oil known sources of p.oyment for items or services tor which the Program is not primarily liibJ.e

Page 2 ofS ~ r 42 U.S.C. § 300aa-15{g), jncludilli State compensation programs, insurance policies, Federal or State health benefits programs (athe1· than Title XIX oftlw Social Security Act (42 U.S.C. § I196 et seq.)), or entities that provide health serviet.l8 on a prepaid bagi,.

11. Payment 1nadt pumiont to parapph 8 of this Stip~latioo and any amounts awlll'ded pur&Uant to pa1·agraph 9 will be made in a~dam:e with 42 U.S.C. § 300aa-l 5(i), subject to the availability of sufficient statutory funds.

12. The parties end their attorneys further agree and stipulate that, e,r.cept for any award for anomoy's fees and Jitisation oosts, and paat \lDreimbwsed txpc::na(¾'I, the money provided pllrniant to thi.& Stipulation will be used ooleJy for the benefit of petitioner as contemplated by a etrict conatructlon of42 U.S.C. § 300aa-1S{a) and (d), and subject ro the conditions of 42 U.S.C. § 300aa-l5(g) and (h).

13. ln return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity. and on behalf of her heir,, executors, administrators. &uccessors, and a8Sisns, does forever irrevocably and unconditionally releas~, acquh and discharge the Unired Stutes and the Seccetwy of Health. and Human Services from any and all actions or causes of action (includifl8 agreements, judgments, claims, datru1sea, loss of services. expenses 1md aU demands of whatever kind or nature) that bave been brought, could have been brought, or could be timely broughc in the.United States Court of Fed0ral Claims, under tho National Va~jnc Injury Compensation Program, 42 U.S.C. f 300aa-l0 et seq., on account of, or in any way growing out of, any and all known or unknow.n, suspected or unsuspected personal i1tjuriea to or dea1h of petitioner resulting from, or alleged to have r~ulted from, the flu vaccination admmistered on or about Septtmber 7, 2017, as aJleged by petitioner in ll petition for vaccine compen:iation filed on or about May IS, 2018, in the United States Court of Federal Claims as petition No. l8-684V.

Page3of5 14. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable upon proper notice to the Court on behalfof either or both ofthe parties.

IS. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the United States Court of Federal Claims fail• to enter jud~t in confonnlty with a decision that is in complete ~Qnformity with the terms of this Stipulation, then me parties' settlement and this Stipulat.ion shall be voidable at tho sole discretion of either party. · 16. This Stipulation oxprea.,es a full and comple~ negotiated settletnont of liability and damages claimed under the National Childhood Vaccint Injury Acr of 1986, as amended, ~ t H otherwise noted in paragraph 9 above. There is absolutely no agreement on the _pa,1 of the parties hereto to make any payment or do any act or thing other than is herein expressly stated and clearly agreed to. The parties further ugree and und~rstand that the award described in this Stipulation may reflect a compromise ofabe parties' respective positions as to JiabiHty and'or amount of damages, and further, that a chan1e in the nature of the injury or condition or in the items of compc:.nsation 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 ofHealth and Human Services that the flu vaccine caused pelitioner's alleged right shoulder iajuries, or any other injury or any of her current dilUAbilities.

18. All rishts and obligation$ of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, succ:essors. and/or assigns.

END OF STIPULATION

Page4of5 Respectfully submitted.

PETITIONER:

~ ATTORNEY OF RECORD FOR AUfflOIUZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

,ESQ. .,._____ __ ffl (_L___ _ _ ___.:::;..,._ NB E. REEVES D Director Torts Branch Civil Division U.S.DepartmentofJusricc P. 0. Box. 146 Benjamin Ftanklin Station Wahington, O.C. 20044-0146

AUTHORIZED .REPIUtSENTATIV.E OF ATTORNEY OF RECORD FO.R THE SECRETARY OF HEALTH AND HUMAN SERVICES: Wt/Ads~tf!.,t,, TAMARA OV£RBY Acting Director, Division of Injury Compensatioo Programs Healthcare Sysrems Bureau &«tftf Senior Trial Coun$el Torts Branch, CMl Division U.S. Department of Justice Health Resources and Ser\lices Adrnini,mation P.O. Box 146 U.S. Depanment of Health Benjamin Franklin Station a.ad Humso Services Washington, D.C. 20044--0146 5600 Fishers Lane Tel: (202) 616•4122 Parkl~ Building. Stop-08Nl46B Rockville, MO 20857

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