Hunter v. Secretary of Health and Human Services

Sn the Guited States Court of Federal Clanns

OFFICE OF SPECIAL MASTERS

No. 20-1675V

Filed: December 21, 2021

UNPUBLISHED

MICHELE HUNTER,

Petitioner, ;

Joint Stipulation on Damages;

Influenza (“Flu”) vaccine; Cellulitis:

SECRETARY OF HEALTH AND Panniculitis

HUMAN SERVICES,

V.

Respondent.

Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.

Benjamin Warder, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION"

On November 24, 2020, 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 she suffered cellulitis and/or panniculitis as a result of her receipt of an influenza (“flu”) vaccine administered on November 20, 2019. Petition at 1; Stipulation, filed December 21, 2021, at ff] 2-4. “Respondent denies that the flu vaccine caused petitioner to develop cellulitis and/or panniculitis, and further denies that the flu vaccine caused petitioner to suffer from any other injury or her current condition. ” Stipulation at {| 6.

Nevertheless, on December 21, 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 the decision of the Court in awarding damages, on the terms set forth therein.

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).

Pursuant to the terms stated in the attached Stipulation, | award the following compensation:

A lump sum of $41,000.00 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 § 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.* IT |S 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

)

MICHELE HUNTER, ) )

Petitioner, ) ) No. 20-1675V (ECF)

Vv. ) Special Master Horner )

SECRETARY OF HEALTH )

AND HUMAN SERVICES, ) )

Respondent. ) )

STIPULATION

The parties hereby stipulate to the following matters:

1, Michele Hunter (‘petitioner’) filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (“Vaccine Program’’). The petition seeks compensation for injuries allegedly sustained following petitioner’s receipt of an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (“Table”), 42 C.F.R. § 100.3(a).

2. Petitioner received the flu vaccine on November 20, 2019.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she developed cellulitis and/or panniculitis as a result of her receipt of the flu vaccine.

5. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of her condition.

6. Respondent denies that the flu vaccine caused petitioner to develop cellulitis and/or panniculitis, and further denies that the flu vaccine caused petitioner to suffer from any other injury or her current condition.

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 $41,000.00 in the form of a check payable to petitioner, Michele Hunter, which amount represents 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 U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceedings before the special master to award reasonable attorney 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 Vaccine 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 on a prepaid basis.

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-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 attorney fees and litigation costs, 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 Secretary of Health and Human Services and the United States of America 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 seg., 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 vaccine administered on November 20, 2019, as alleged by petitioner in a petition for vaccine compensation filed on or about November 24, 2020, in the United States Court of Federal Claims as petition No. 20- 1675V.

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.

15. If 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 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 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 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 condition, 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 of America or the Secretary of Health and Human Services that petitioner’s alleged cellulitis and/or panniculitis and residual effects, or any other injury, were caused by the flu vaccine.

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

END OF STIPULATION a a Respectfully submitted,

PETITIONER

I

| MICHELE HUNTER

ATTORNEY OF RECORD FOR

PETITIONER:

PAUL ZIL

Muller Brazil, LLP

715 Twining Road, Suite 208

Dresher, PA 19025 (215) 885-1655

AUTHORIZED REPRESENTATIVE

OF THE SECRETARY OF HEALTH

AND HUMAN SERVICES:

Dale Wahler, PN Sc, ALAN, for

TAMARA OVERBY

Acting Director, Division of Injury

Compensation Programs (DICP)

Health Systems Bureau

Health Resources and

Services Administration

U.S. Department of Health and Human Services

5600 Fishers Lane, 08N146B

Rockville, MD 20857

Dated: 12/21 /eor J

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, DC 20044-0146

ATTORNEY OF RECORD FOR

RESPONDENT:

Tan pane Piwardin

BENJAMIN P. WARDER

Trial Attorney

Torts Branch

Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, DC 20044-0146

Telephone: (202) 532-5464

Email: [email protected]