Peavey v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1068V UNPUBLISHED

COURTNEY PEAVEY, Chief Special Master Corcoran Petitioner, Filed: August 31, 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)

Sean Franks Greenwood, Greenwood Law Firm, Houston, TX, for Petitioner.

Lynn Christina Schlie, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On July 24, 2019, Courtney Peavey 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 14, 2018. Petition at 1; Stipulation, filed August 31, 2021, 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 there has been no prior award or settlement of a civil action for damages arising out of the alleged vaccine injury.

Petition at ¶¶ 4, 21-22; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a SIRVA Table injury following the flu vaccination, and further denies that the vaccine caused petitioner to suffer a shoulder injury or any other injury or petitioner’s current condition.” Stipulation at ¶ 6.

Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 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, upon review, I agree that the identified material fits within this definition, I will redact such material from public access.

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

Nevertheless, on August 31, 2021, 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 Section 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

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 ST ATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

COURTNEY PEAVEY, Petitioner, No. 19-1 068V ) Chief Special Master Corcoran v. ) ) SECRETARY Of- HEALTH AND ) HUMAN SERVICES. ) ) Respondenl. ) _ ____ ) STIPULATION Tht: parties hereby stipulate to the following matters: I. Pet itioner. Courtn~y Peavey, tiled 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 injuries allegedly related to petitioncr·s receipt of the intlue11za ("nu") vaccine. which vaccine is contained in lhe Vaccine Injury Table (the ·'Table"). 42 C.r.R. § 100.3 (a) .

2. Petitioner received the nu vaccine on September 14. 2018.

3. The vaccine was administered within the United Slates.

4. The petition alleges that petitioner sustained a Shoulder Injury Related to Vaccine Administration (SIR VA) as a result of receiving the flu vaccine. and that p!.!litiom:r experienced the residual effects of this injury for more than six months.

S. Petit ioner represents that there has been no prior award or settlement of a civil action for damages arising out of the alleged vaccine injury.

6. Respondent denies that petitioner sustained a SIR VA Table injury following the Ou . I. vaccination, and further denies that the vaccine caused petitioner to suffer a shoulder injury or any other injury or petitioner" s current condition.

7. Mainta in ing their above-stated positions. the parties nevertheless now agree that the issues between them sha ll be settled and that a de..:ision 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 tkcision consistent with the terms of this Stipulation. and after pditiont:r has fikd an t:lect ion to receive compensation pmsuant lo 42 U.S.C. § 3OOaa-21(a)(I), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $40,000.00 in the form of a check payable to pctitio1ler. T his amount represents compensation for all damages that would be available under 42 U.S.C. § 3O0aa- I 5(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. § JOOaa-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 any proceeding up0n this petition.

I 0. Petitioner and petitioner"s attornt:y 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. § 3OOaa-l 5(g). to the extent that payment has been made or can reasonably be expected to be made un<for any State compensation programs. insurance policies, Federal or State hea lth benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)). or by entities that provide hea lth services on a pre-paid basis, and represent that they have idcntitied to responden t all known sources of payment for i tems or -2- services for which the Program is not primarily liable under42 U.S.C. § 300aa-lS(g).

11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-I S(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' tees and li tigation costs, and past unrcimht1rsablt: 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- I S(a) and (d). and subject to the conditions of 42 U.S.C. § 300aa-I5(g) and (h).

13. In return for the payments described in paragraphs 8 and 9. petitioner, in petitioner's individual capacity. and on behalf of petitioner's heirs. executors. administrators. successors or assigns, docs forever irrevocably and unconditionally release. acquit and discharge the Un ited States and the Secretary of I lea Ith and I luman Serv ices from any and all actions or causes of act ion (includ ing agreements. judgmrnts. claims. damages. loss of services. expenses and all tkmands of whatever ki nd or nature) that have been brought. cou ld have been brought, or could be timely brought in the United States Court of Federal Claims. under the National Vaccine Injury Compensation Program. 42 U.S.C. § J00aa-I0 ct 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 al leged to have resulted from , the vaccination as alleged by peti tioner in a petition for vaccine compensati on fi led on or about September 14. 20 18, in the United States Court or Federal C laims as petition No. 19- 1068V.

14. Ir petitioner should dic prior to entry of judgment, this agreement shall be -3- 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 f ederal Claims Jai ls to enter judgment in conformity with a decision that is in complete conform ity with the terms 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 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 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 re flect a c.ompromise of the parties· respective positions as to I iability and/or amount or damages, and f'urther. that a change in the nature of the injury or

condition or in the items of compensation sought, is not grounds to modify or rev ise th is agreement.

17. Th is Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the vaccine caused petitioner's alleged injury or any other injury or pet itioner's cmrcnt condition.

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

END OF STIPULATION

.4.

Respectfully subm ittcd.

AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL:

Sean Greenwoo ~.__,____:_ ½- HEATH ER L. PEARLMAN r~ Attorney for Petitioner Deputy Director The Greenwood Law f-irm PLLC' Torts 8ranch 1415 North Loop West. Suite I I 00 Civil Division Houston, Texas 770088 U.S. Department of Justice Tel: 832-356-1588 P.O. Box 146 Email : [email protected] 13enjamin Franklin Station Washington. DC 20044-0146

AUTHORIZED REPRESENTATrVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES:

o& ~ / .D0Z)C,,I tff7::_ TAMARA OVERBY LYNN C. SC HU E Acting Director. Division of Injury Trial Attorney Compensation Programs Torts 13ranch Healthcare System Bureau Civil Division Health Resources and Services U.S. Department of Justice Adm in istrat ion P.O. Box 146 U.S. Department of Health 13cnjamin Frank lin Station and Human Services Washington. DC 20044-0146 5600 rishcrs Lane, 08N 1468 Tel: 202-6 16-3667 Rockville, MD 20857 Email: [email protected]

Dated: oKl:s J.urz.,J -5-