Shinn v. Secretary of Health and Human Services

Sn the Guited States Court of Federal Clanns OFFICE OF SPECIAL MASTERS No. 18-1328V Filed: August 18, 2021 UNPUBLISHED

SHARI GARDNER, as executrix of the estate of JAMES SHINN, Joint Stipulation on Damages; Petitioner, V. Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine SECRETARY OF HEALTH AND Administration (SIRVA) HUMAN SERVICES, Respondent.

Kristen Blume, Richard Gage PC, Cheyenne, WY, for petitioner.

Mallori Openchowski, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION ' On August 30, 2018, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,? (the “Vaccine Act”). Petitioner alleges that he suffered a SIRVA injury to his left shoulder.

Petition at 2; Stipulation, filed August 17, 2021, at J] 1-4. Petitioner further alleges that he experienced the residual effects of his injury for more than six months and has not received any prior award or settlement for his injury. Petition at 2; Stipulation at Jf] 4-5.

“Respondent denies that the flu vaccine caused petitioner's alleged shoulder injury or any other injury and further denies that the flu vaccine caused his death. ” Stipulation at 16.

Nevertheless, on August 17, 2021, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. | find the stipulation

1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will be posted on the United States Court of Federal Claims’ website in accordance with the E-Government Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 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 the special master, upon review, agrees that the identified material fits within this definition, it will be redacted from public access.

2 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). reasonable and adopt 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, | award the following compensation: A lump sum of $32,000 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 § 15(a). /d.

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/Daniel T. Horner Daniel T. Horner 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

SHARI GARDNER, as executor of the estate of JAMES SHINN, No. 18-1328V Petitioner, Special Master Horner ECF V. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: 1. James Shinn (“Mr. Shinn”) filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (the “Vaccine Program”).

Upon Mr. Shinn’s death, Shari Gardner (“petitioner”), as personal representative of the Estate of James Shinn, was substituted as petitioner. The petition seeks compensation for injuries allegedly related to Mr. Shinn’s receipt of the influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).

2. Mr. Shinn received a flu vaccine on or about September 16, 2015.

3. The vaccine was administered within the United States.

4. Petitioner alleges that Mr. Shinn suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a consequence of the flu immunization he received on or about September 16, 2015, and further alleges that he suffered the residual effects of this injury for more than six months.

Page | of 5 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on Mr. Shinn’s behalf as a result of his condition.

6. Respondent denies that Mr. Shinn suffered the onset of his alleged SIRVA within the Table timeframe; denies that the flu vaccine caused Mr. Shinn’s alleged shoulder injury or any other injury and further denies that the flu vaccine caused his death.

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(a)(1), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $32,000.00, in the form of a check payable to petitioner, representing 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-21(a)(1), 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 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 Page 2 of 5 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 prepaid basis.

1]. Payment made pursuant to paragraph 8 of this Stipulation and any amounts 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.

12. Petitioner represents that she presently is duly authorized to serve as Personal Representative of the Estate of James Shinn, under the laws of the State of New Jersey. No payments pursuant to this Stipulation shall be made until petitioner provides the Secretary with documentation establishing her appointment as Personal Representative of the Estate of James Shinn. If petitioner is not authorized by a court of competent jurisdiction to serve as Personal Representative of the Estate of James Shinn at the time a payment pursuant to this Stipulation is to be made, any such payment shall be paid to the party or parties appointed by a court of competent Jurisdiction to serve as legal representative of the Estate of James Shinn, upon submission of written documentation of such appointment to the Secretary.

13. Inreturn for the payments described in paragraphs 8 and 9, petitioner, in her individua | capacity, and as legal representative of the Estate of James Shinn, on her own behalf, and on behalf of the Estate, and Mr. Shinn’s heirs, executors, administrators, successors, and 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 United States Court of Federal Claims, under the National Vaccine Injury Compensation Program, U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or Page 3 of 5 unknown, suspected or unsuspected personal injuries to or death of Mr. Shinn resulting from, or alleged to have resulted from, the flu vaccination administered on or about September 16, 2015, as alleged by petitioner in a petition for vaccine compensation filed on or about August 30, 2018 in the United States Court of Federal Claims as petition No. 18-1328V.

14. Ifthe 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 terms of this Stipulation, then the parties’ settlement and this Stipulation shall be voidable at the sole discretion of either party.

15. 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 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 items of compensation sought, is not grounds to modify or revise this agreement.

16. 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 Mr. Shinn’s alleged shoulder injury or death, or any other injury.

17. All rights and obligations of petitioner hereunder shall apply equally to petitioner’ s heirs, executors, administrators, successors, and/or assigns, as legal representative of the Estate of James Shinn.

END OF STIPULATION Page 4 of 5 Respectfully submitted, PETITIONER: ti GARDNER ATTORNEY OF RECORD FOR PETITIONER: RISTEN BLUM RICHARD GAGE, PC P.O. Box 1223 1815 Pebrican Ave. Cheyenne, WY 82003 (307) 433-8864 AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES: Dab Wushlr., DN\Se, WS, APL

TAMARA OVERBY Acting Director, Division of Injury Compensation Programs Healthcare Systems Bureau Health Resources and Services Administration U.S. Department of Health and Human Services 5600 Fishers Lane, 08N146B Rockville, MD 20857 Dated: OF ea Zou e Page 5 of 5 AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL: HEATHER L. PEARLMAN Deputy Director Torts Branch Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 ATTORNEY OF RECORD FOR RESPONDENT:

MALLORI B. OPENCHOWSKI Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 305-0660 [email protected]