Nace v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1344V UNPUBLISHED

ANDREA DEPOALA NACE, Chief Special Master Corcoran Petitioner, Filed: December 5, 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)

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.

Julia Marter Collison, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1 On August 31, 2018, Andrea DePoala Nace 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 related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccination she received on November 21, 2016. Petition at 1; Stipulation, filed December 4, 2019, at ¶¶ 2-4. Petitioner further alleges that the vaccine was administered in the United States, she experienced the residual effects of her injury for more than six months, and that there has been no prior award or settlement of a civil action for damages as a result of her alleged condition. Petition at 1, 4; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a SIRVA Table injury, and denies that the flu vaccine caused petitioner’s alleged SIRVA or any other injury or her current condition. ” Stipulation at ¶ 6.

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).

Nevertheless, on December 4, 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 $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 § 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

ANDREA DEPOALA NACE, Petitioner, V. No. 18-1344V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: l. Andrea DePoala Nace ("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 an injury allegedly related to petitioner's receipt of an influenza ("flu'') vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a).

2. Petitioner received the flu vaccine on November 21, 2016.

3. The vaccine was administered in the United States.

4. Petitioner alleges that as a result of receiving the flu vaccine, she suffered a Shoulder Injury Related to Vaccine Administration ("SIRVA"), and experienced the residual effects of this injury for more than six months.

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

6. Respondent denies that petitioner sustained a SIRVA Table injury, and denies that I ofS the flu vaccine caused petitioner's alleged SIRVA or any other injury or her current condition.

7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between 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 entry of judgment 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-21 (a)(l ), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $50,000.00 in the fonn 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).

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-2l(a)(l) and an applicatio!l, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition.

10. Petitioner and her attorney represent that they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(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 made pursuant to paragraph 8 of this Stipulation, and any.amount awarded pursuant to paragraph 9, will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds.

13. In return for the payments described in paragraph 8, and any amount awarded pursuant to paragraph 9, petitioner, in her individual capacity, and on behalf of her 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-l 0 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 vaccine administered on November 21, 2016, as alleged in a Petition filed on August 31, 2018, in the United States Court of Federal Claims as petition No. 18-1344V.

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

15. 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 fails to enter judgment in conformity with a decision that is in complete conformity with the t~rms 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 f~ll and complete negotiated settlement of liability and of 5 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 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.

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 SIRVA, or any other injury.

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

END OF STIPULATION

Pl!.'rJTIONER:

'-ANDREA ~DEPOALA ~~~NACE

ATTORNEY OP RECORD FOR AUTHORIZED REPRESENTATIVE P. ONER: OF THE ATTORNEY GF.NF.RAL: ~ f_}----- R[NJ:::.l::., REF.YES t>eputy Director Tort~ Branch Civll DiYi!lon U.S. Department or.rustice P.O. f3ox 146 Beajamin f rankfin Stalion \Vashin&ton. DC 20044-0146

AV'l'HOJUZft;D REPRESENTATIVE ATTORi"'EY OF RECORD FOR OF TH£ SECRETARY OF HF.ALTH RESPONDENT: AND HUMAN SERVTCRS: W&id·;_~,w,.,u~.n,, #t,, ~~ TAMARA OVERBY dd"r:iXM". COLLISON Acting lJircctor, Di\llsion of Trial AlCorney Injury ComperisaHoJ'I Progro.tn:. Torts Branch Htnlthcarc: System~ nuccau Civil Oi\li~io1> U.S. Department of I lealth U.S. Department of Justice nnd I tuman Sen•lces V.O. Hox 146 5600 l•ishel's Lane Henjamin Franklin Station Patklawn HuildinQ, Mail Stop 08-Nl46R Wallhiniton, DC 20044-0146 Rockvlllc1 MD 20857 (202) 305-0I02

Dated: 1c9(L-f /J 1 I