Gilbert v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: December 17, 2020 * * * * * * * * * * * * * * * * * * * UNPUBLISHED JO ANN GILBERT, * * No. 18-402v Petitioner, * v. * Special Master Gowen * SECRETARY OF HEALTH * Stipulation; Prevnar 13; AND HUMAN SERVICES, * Shoulder Injury Related to * Vaccine Administration (SIRVA).

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

James V. Lopez, United States Department of Justice, Washington, DC, for respondent.

DECISION ON STIPULATION1 On March 16, 2018, Jo Ann Gilbert (“petitioner”) filed a petition for compensation within the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). The petition seeks compensation for injuries allegedly related to petitioner’s receipt of a pneumococcal conjugate (Prevnar 13) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).

Petitioner received a Prevnar 13 vaccine on August 31, 2017. The vaccine was administered within the United States. Petitioner alleges that she sustained a shoulder injury related to vaccine administration (SIRVA) within the time period set forth in the Table, or in the alternative, that her alleged shoulder injury was caused by the Prevnar 13 vaccine. She further alleges that she experienced the residual effects of this condition for more than six months.

Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of Federal Claims. The Court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion is posted on the Court’s website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). An objecting party must provide the Court with a proposed redacted version of the opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the Court’s website without any changes. Id. The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.

On December 17, 2020, respondent filed a stipulation providing that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 74). Respondent denies that petitioner sustained a Table SIRVA injury; denies that the vaccine caused her alleged shoulder injury; and denies that her current condition is the sequela of a vaccine-related injury. Id. at ¶ 6.

Maintaining their respective positions, the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding compensation according to the terms of the stipulation attached hereto as Appendix A. Id. at ¶ 7.

The stipulation awards: 1) A lump sum of $75,000.00 in the form 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). I adopt the stipulation as the decision of the Court and hereby award compensation in the amount and on the terms set forth therein. Accordingly, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master

3Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a).