Crofton v. Secretary of Health and Human Services

&RUUHFWHG In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-561V UNPUBLISHED

JULIE CROFTON, Chief Special Master Corcoran Petitioner, Filed: October 19, 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.

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

DECISION ON JOINT STIPULATION 1 On April 16, 2019, Julie Crofton 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”) caused by an influenza (“flu”) vaccine administered on October 13, 2017. Petition at 1; Stipulation, filed at October 19, 2021, ¶¶ 1, 2, 4. Petitioner further alleges that the vaccine was administered within the United States, that she experienced the residual effects of her condition 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 a result of her injury. Petition at 1, 4; Stipulation at ¶¶ 3-5. Respondent denies that Petitioner sustained a SIRVA Table injury following the flu vaccination and further denies that the flu 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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 October 19, 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 $99,922.23 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.

I~ THE l'~ITED STATES COl 1RT OF FEDERAL C'LAI\-IS OFFICE OF SPECIAL '.\1ASTERS

.IULIF. CROFTON.

Petitioner. No. 19-561V Chief Special Master Corcoran V. SECRETARY OF HEAL TH AND Hl IMAN SERVICl :S.

Respondent.

STIPl 'LATION The parties hereby stipulate to the follow111g matters .

Petitioner. Julie Crofton. filed a petition for vaccine compensation under the Nuuonul Vuccinc Injury Compcnsution Prog.rum. 42 U.S.C. *300aa-l0 to 34 (the ··vaccine Program··). The petition seeks compensation for 111_1urrcs alleged!~ related to petit1oner·s receipt of the influenza r•flu .. ) vaccine. which vaccine 1s contained in the Vaccine Injury Table tthe ·Table .. ). 42 CF R *100.3 (a) 2. Petitioner received the flu vaccine on October 13.2017 3. The vaccine was administered within the l Jnited States.

4 The pet1t1on alleges that petitioner sustained a Shoulder Injury Related to Vaccine Adm1111strat1on r·SIR VA .. ) as a result of receiv111g the flu vaccine. and that petitioner experienced the residual effects of this injury for more than six months Petitioner represents that there has been no prior award or settlement of a civil action for damages arising out of the alleged vaccine 111,iury 6. Respondent dcmcs that petitioner sustained a SIRVA Table injury following the flu -1- , m:cinauon. and further denies that the llu vaccine caused petitioner to suffer a shoulder inJUI") or an~ other injul") or petitioner· s current cond1tmn.

7. Mamtain111g their above-stated posit ions. the parties nevertheless no\\ agree that the issues between them shall be settled and that a decision should be entered awarding the compensat ion descnhed in paragraph 8 of this Stipulation.

8. As soon as practicable alter an ent1: of judgment reflecting a decision consistent with the terms orthis St ipulation. and after petitioner has filed an election to receive compensation pursuant to 42 lJ SC *300aa-2 I(a)( I). the Secrctaiy, of Health and Human Serv ices will issue the following vaccine compensat ion payment: A lump sum of $99,922.23 in the form of a check payable to petitioner This amount represents compensation for all damages that would he available under 42 ll S.C ~300aa-15(a) .

9. As soon as practicable alter the entr: of judgment on entitlement in this case. and alter petitioner has llled both a proper and timel y election to recei ve compensation pursuant to l .S.C. *300aa-2 I(a)( I). and an appl 1cat1on. the parties \\ ill submit to further proceed ings before the spec ial master to award reasonable attorneys · tees and costs incurred 111 an~ proceeding upon this petition.

10 Pet1t1oner and pct1tioner·s attorney represent that compensation to he provided pursuant to this Stipulation 1s not for an) items or services for which the Program is not primaril y Iiahle under 42 U S.C. *300aa- I 5(g ). to the extent that payment has been made or can reasonably he expected to be made under an) State compensation programs. insurance policies. Federal or State health benefits programs (other than Title XIX of the Social Sccmity Act (42 U.S.C *1396 ct seq .)). orb~ entities that provide health services on a pre-paid basis. and represent that they have identified to respondent al I known sources of payment for items or -2- services for which the Program 1s not pnmanl~· liable under 42 l 1.S,C ~ 300aa- I 5(g).

11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation will he made in accordance with 42 l .S.C. *300aa- I5( i). subject to the availab1l ity of sufficient statutory funds .

12. The parties and their attorneys further agree and stipulate that. except for any award for attorneys· Ices and litigation costs. and past unreimbursablc expenses. the money provided pursuant to this Stipulation will be used solcl~ for the benefit of petitioner as contemplated by a strict construction of 42 LI S.C *300aa- I 5(a) and (d ). and subject to the conditions of42 lJ .S.C. *300aa-15(g) and (h).

13. In return for the payments descrihcd m paragraphs 8 and 9. petitioner. in petitioner"s individual capacit~. and on hehalf of petit1oner"s heirs. executors. administrntors. successors or assigns. docs forever irrevocably and unconditional!~, release. acquit and discharge the l nited States and the Secretary of I lealth and Human Sen ices from any and all actions or causes of action ( including agreements, _1udg.ments. cla11ns. damages. loss of services. expenses and all demands of ,vhatever kind or nature) that have been brought. could have been brought. or could he llmel . brought m the United States Court or Federal Claims. under the National Vaccine Injury Compensation Program. 42 U.S.C. *300aa-l0 et seq .. on account oC or in any way growing out ot: any and all known or unknown. suspected or unsuspected personal 111juncs to or death of petitioner resulting from. or alleged to have resulted from. the vaccination as alleged by petitioner in a petition for vaccmc compensation filed on or about April 16. 20 I 9. in the United States Court of Federal Claims as petition No. l ()-56 l V. . If petitioner should <lie 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 Federal Claims fails to enter .1ud1m1ent~

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 -;ole discretion of either party 16. This St1pulat1on expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine lnjuiy Act of I 986. as amended. except as otherwise noted 111 paragraph 9 abow. There 1s absolutely no agreement on the part of the parties hereto to make an~ payment or to do an~ act or th111g other than is herein expressly· stated and clearl~ agreed to. The parties further agree and understand that the award described in this Stipulation ma~ reflect a compromise of the parties· respective positions as to Iiabil ity and/or amount or damages. and further. that a change 111 the nature of the tnJlff)' or condition or in the items of compensation sought. 1s not grounds to mod it~· or revise this agreement 17. This Stipulation shall not he construed as an admission by the United States or the Secretaiy· of Health and Human Services that the llu vacctne caused pet1t1oner"s alleged injury or an~ other injury or petitioner's current condition.

18 . All rights and obligations of pct1t1oner hereunder shall apply equall~ to petitioner"s heirs. executors. admm1strators. successors. and/or assigns E~D OF ST I Pl 'LATIO'

-4- Respectfully submitted.

PETITIONER:

.[tAfiECROFT .\ TTORNEY OF RECORD .\l "THORIZED REPRESE~TATl\'E FOR PETITIONER: OF THE ATTOR'\E\" GE'.\ERAL:

~~~RAP- t\ttorncv for Pct1t1oncr Law Offices of Leah V Durant. Pl.LC ,~\LJ?eCtA..Lvw::--- 111.:ATHER L. PEARLMAN Deputy Director Torts Brunch 1717 K Street NW. Suite 900 Civil Di, ISl(lll Washington. DC 20006 l .S Department of Justice Tel · 202- 775-9200 P.O. Box 146 Fax. 202-652-1 178 Benjamin Franklin Station Email : LDurant a durantllccom Wash rngton. DC 20044-0146

Al "'fHORIZED REPRESENTATl\'E ATTOR~E\' OF RECORD FOR OF THE SECRETARY OF IIE \l.TII RESPO'WE~T: ,\~I) HI "!\1A~ SER\'ICES:

V~~E~f(Se,1 A/Jhl/;~1, I.YNN C SCIILIF Acting Director. Division ofln_1ury rriul Attorney Compcnsatwn Programs I orts Branch Healthcare System Aureau Civil Division Health Resources and Services lJ S Department of Justice Administration P.O Box 146 l .S. Department of Health Benjamin Franklin Station and I luman Services Washington. DC 20044-0146 5600 rishers Lane. 08N 1468 Tel 202-616-3667 Rockville. MD 20857 Email · L,nn '-.chltl'11u•-<l111 "11~

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