Stuker v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-0298V UNPUBLISHED

LINDA STUKER, Chief Special Master Corcoran Petitioner, Filed: September 21, 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)

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

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

DECISION ON JOINT STIPULATION1 On March 16, 2020, Linda Stuker 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 shoulder injury related to vaccine administration (“SIRVA”), which meets the Table definition for SIRVA, after receiving the influenza vaccine on January 16, 2018. Petition at 1, ¶¶ 1, 10; Stipulation, filed at Sept.

21, 2021, ¶¶ 1-2, 5. Petitioner further alleges that she suffered the residual effects of her SIRVA for more than six months and that neither she nor any other party has filed a civil action or received compensation for her injury. Petition at ¶¶ 10-11; Stipulation at ¶¶ 4- 5. Respondent “denies that [P]etitioner sustained a SIRVA Table injury; denies that the vaccine caused [P]etitioner’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.

Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 September 21, 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: 1. A lump sum payment of $10,000.00 in the form of a check payable to Petitioner; and 2. A lump sum payment of $2,393.69, representing reimbursement of a Medicaid lien for services rendered to Petitioner by the State of Montana, in the form of a check payable jointly to Petitioner and Department of Public Health and Human Services, and mailed to: Department of Public Health and Human Services, Quality Assurance Division P.O. Box 202953 Helena, MT 59620 Medicaid ID: 14619.

Stipulation at ¶ 8. Petitioner agrees to endorse the check to Department of Public Health and Human Services for satisfaction of the Medicaid lien. 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 STATES COURT OF FEDERAL CLAIM:S omCE OF SPECIAL MASTERS

LINDA STUKER, Petitioner, No. 20-298V ECF v. Chief Special Master Core oran SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: 1. Linda Stuker (''petitioner"), filed a petition for vaccine compensation under the National Vaccme Injury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (tru: "Vaccine Program"). The petition seeks compensation for injuries allegedly relate~ to peti1icmer's receipt of an influenza ('1lu") vaccine, which vaccine is contained in the Vaccine Injury Tab:le (the '7able"), 42 C.F.R. § 100.3(a) 2. Petitioner received a flu vaccine on January 16, 2018.

:t The vaccine was adr:nroistered within the United States.

4. Petitioner alleges that she sustained a shoulder injucy related to vaccine, adnrioistration (''SIRVAn) within the time period set forth in the Table, or in the alternative, that her alleged · shoulder injury was caused by the vaccine. She further alleges that she experienc,,d·th~ residual effects oftlm condition for more than silt months.

S. Petitioner represents that there bas been no prior award or settlement of a civil action for damages on her behalf as a result of her alleged injury.

6. Respondent denies that petitioner sustained a SIRVA Table injllryj dc:nies that the vaccine caused petitioner's alleged shoulder injury, or any other injury; and dem~s that her CUITCnt condition is a sequela of a vaccine-related iajury.

7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall be settled, and that a decision sboukt be entered awar<i.ing the compensation described in paragraph 8 of this Stipulation.

8. As soon as practicable after an entry of judgment reflecting a decision· consist.em with the tenns ofthis 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 Servi:ces will issue the following vaccine compensation payments: a. A hm:tp sum of $10,000.00 in the fonn of a check payable to petitioner; and b. A Jump sum of $2,393.69, 1 representing reimbursement of a Mecu:aid Jien for services rendered to petitioner by the State of Montana, in the form of a check payable jointly to petitioner and Department of Public Health and J!uman Services, and mailed to: Department of Public Heahh and Human Services, . Quality Assurance Division P .0. Box 202953 Helena, MT 5962() Medicaid ID: 14619

1 TM aq10unt represents full sa&faction of any right of subrogation, assignment, claim, lien, or cause of action ~e State (!f Montana may have against any individual as a result of any Medicaid payments the -Montana Program has made to or on behalf of Linda Stulcer as a res;.llt of her alleged vaccine-re1ated injury suffered on or about January 9, 2017, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h).

Petitioner agrees to endorse this check to Department of Public Health and Human Services. These amounts represent compensation for an damages that would be available m1<ier U.S.C. § 300aa-15(a).

9. As soon as practicable after the entcy of judgment on entitlement in tbi$ case, and after petitioner has filed both a proper and timely elecoon to receive compensation pu~suant to 42 U:S.C. § 300aa-2l(a)(l), and an application, the parties will submit to further proceediogs before the special master to award reasonablc attorneys' fees and costs incU1Ted in proct:eding 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 whk;h 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 e:itpected to be made under any State compensation programs, insurance policies, Federal or S~te·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 on a pre-paid basis.

11. Payment made pursuant to paragraph 8 and any amounts awardedpumuant to paragraph 9 oftJm Stipulafun will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the av~ilability of sufficient statutory funds.

12. The parties and their atto~eys further agree and stipulate that, except for any award for attorney's fees and litigation costs, and past umeimbursable expenses, the mot1ey provided pursuant to this Stipulation will be used solcly for the benefit of petitioner as contomplated by a strict construction of 42 U.S.C. § 300aa~ 15(a) and (cl), and subject to the conditiow, 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, ex:ecutors, admilmtrators, 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 cif action (including agreements, judgments, cJaim.s, damages, Joss of services, expenses ami all demands ~f whatever kind or nature) that have been brought, could have been brought, or could be timeJy brought in the Court of Federal Claims, under the National Vaccine Injury Comp,::nsation 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 fhl vaccination administered on January 16, 2018, as alleged in a petition for vaccine compensawn filed" on or about March 16, 2020, in the United States Court of Federal Claims as petition No. 20-298V.

~4. ~f-petitioner should die poor to entry of~dgment, this agreement sha:[ 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 confonnity ~vith the terms of this Stipulation or ;f the Court of Federal Claims fam to enter judgment in conformity with a decision that is in complete conformity with the teims 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 o:fJiability and· damages cJaimed under the National Cbiklh.ood Vaccine Injury Act of 1986, as aniended, except as otherwi,e 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 ~ herein eJtpressly stated

and clearly agreed to. The parties further agree and understand ·that the award o,scribed in trus Stipu]ation may reflect a compron:me of the parties' respective positions as to linbility and/or amomt of damages, and further, that a change in the natme of the injury or condition or mthe items of compensation sought, ~ not grounds to modify or revise tlm 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 injury or . . any other injury or her current disabilities, or that petitioner suffered an injury ccintained in the Vaccine Injury Table.

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

END OF STIPULATION

Respectfully submitted,

ATTORNEYOFRECORDFOR AUfflORI.ZED REPRESE:NTATIVE PETITIONER: . OF THE ATTORNEY GENERAL:

~(~ LEAH V. DURANT ~~~ HEATHER L. PEARLMAN LAW OFFICES OF LEAH V. DURANT, PLLC Deputy Director 1717 K Street, Suite 900 Torts Branch Washington, D.C. 2006 Civil D~ion (202) 652-1178 U.S. Department of Justice P.O.Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATIORNEY OF RECORD FOR 1 OFfflESECRETARYOFBEALTH RESPONDENT: AND HUMAN SERVICES: .. 't- w a..ok-1 Z)~ ~ I z;,ri:15:c,, ,(1/JM, L6-t- TAMARA OVERBY 0- ~tk~u_ ~ ZO£R. WADE Acting Director, Div:isjon of Iajury Trial Attorney Compensation Programs (DICP) Torts Branch Heahh Systems Bureau Civil Division He11,Jth Resources and Services U. S. pepartment of Justice Adzµinistration . P.O.Box 146 U.S. Departn:i.ent of Health Benjamin Franklin and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08Nl46B (202) 616--4118 Rockville, MD 20857 Ema.ii: [email protected]

Dated; o:,(z,, }-znJ