Clausen v. Secretary of Health and Human Services

Mn the Guited States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-829V

UNPUBLISHED

MARY CLAUSEN, Chief Special Master Corcoran

Petitioner, Filed: February 16, 2021

V.

Special Processing Unit (SPU); Joint

SECRETARY OF HEALTH AND Stipulation on Damages; Influenza

HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury

Related to Vaccine Administration

Respondent. (SIRVA)

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.

Zoe Wade, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION"

On June 5, 2019, Mary Clausen filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, ef seq.? (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA’) caused by an influenza (“flu”) vaccine administered on September 30, 2017. Petition at 1; Stipulation, filed at February 10, 2021, ff 1-4. Petitioner further alleges that the vaccine was administered within the United States, that she suffered the residual effects of this alleged injury for more than six months, and that there has been no prior award or settlement of a civil action for damages on her behalf as aresult of her condition. Petition at 1, 3; Stipulation at J] 3-5. “Respondent denies that Petitioner sustained a SIRVA Table injury; denies that the vaccine caused Petitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.” Stipulation at {| 6.

Nevertheless, on February 10, 2021, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. | 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, | award the following compensation:

A lump sum of $25,000.00 in the form of a check payable to Petitioner.

Stipulation at J 8. This amount represents compensation for all items of damages that would be available under Section 15(a). /d. | 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.?

ITIS SO ORDERED. s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

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Jan 29 21 04:27p barb

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

MARY CLAUSEN, ) )

Petitioner, ) ) No. 19-829¥ v. ) Chief Special Master Corcoran ) ECF

SECRETARY OF HEALTH AND )

HUMAN SERVICES, ) )

Respondent. ) )

STIPULATION

The parties hereby stipulate to the following matters:

1. Mary Clausen, 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 in juries allegedly related to petitioner’s receipt of an influenza (“flu”) vaccine, which is a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).

2. Petitioner received the flu vaccine on September 30, 2017.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she sustained a left shoulder injury related to vaccination administration (““SIRVA”), within the Table time period, following administration of the flu vaccine, and suffered the residual effects of this alleged injury for more than six months.

5. Petitioner 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 petitioner sustained a SIRVA Table injury; denies that the Jan 29 21 04:27p barb 2395408800162027694 p.2 an : vaccine caused petitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.

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 terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21(ay1), the Secretary of Health and Human Services will issue the following vaccine compensation payment:

A lump sum of $25,000.00 in the form ofa check payable to petitioner. This amount represents compensation for alt 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 U.S.C. § 300aa-21(a)(i), and an application, 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 compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be expected to be made under any 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 by entities that provide health services ona pre-paid basis.

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11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa- 15(i), subject to the availability 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, and past unreimbursed expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(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, 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-10 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 vaccination administered on September 30, 2017, as alleged by petitioner in a petition for vaccine compensation filed on or about June 5, 2019, in the United States Court of Federa! Claims as petition No. 19-829V, 14, If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties, Jan 29 21 04:27p barb 2395408800162027694 p4

15. Lf the special master fails to issue a decision in complete conformity 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 conformity with the terms of this Stipulation, then the parties’ settlement and this Stipulatien 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 Childhoed Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely ne 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 damages, and further, that a change in the nature of the injury or cendition 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 to have a left shoulder injury, or any other injury or her current condition, or that petitioner sustained an injury listed in the Vaccine Injury Table.

18. All rights and ebjigations of petitioner hereunder shall apply equally to petitioner's heirs, executers, administrators, successers, and/or assigns,

END OF STIPULATION ~ Jan 29 21 04:27p barb

Respectfully submitted,

PETITIONER: : 0 (O Deveae

MARY CLAUSEN 7

ATTORNEY OF RECORD FOR

PETITIONER:

MAXIMILLIAN J. MULLER

Counsel for Petitioner

MULLER BRAZIL. LLP

715 Twining Road, Suite 208

Dresher. PA 19025

AUTHORIZED REPRESENTATIVE

OF THE SECRETARY OF HEALTIL

AND HUMAN SERVICES:

TAMARA OVERBY

Acting Director, Division of Injury

Compensation Programs

Healthcare Systems Bureau

U.S. Department of Health and Human Services

5600 Fishers Lane

Parklawn Building, Mail Stop 08N146B

Rockville, MD 20857

Dated: 02 loq/z}

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AUTHORIZED REPRESENTATIVE

OF THE ATTORNEY GENERAL: dato Oethe id Cons LW-—

CATHARINE-E-REEVES 4 eps CPF AZ CHARD

Pekin Deputy Director

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, DC 20044-0146

ATTORNEY OF RECORD FOR

RESPONDENT: ote WW LAN PenshWr~_

ZOE R. ae

Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, DC 20044-0146