McDonald v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-0855V UNPUBLISHED

ANITA MCDONALD, Chief Special Master Corcoran Petitioner, Filed: January 26, 2022 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Influenza HUMAN SERVICES, (Flu) Vaccine; Adhesive Capsulitis Respondent.

Emily Beth Ashe, Anapol Weiss, Philadelphia, PA, for Petitioner.

Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On June 10, 2019, Anita McDonald 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 right shoulder adhesive capsulitis as a result of an influenza (“flu”) vaccine administered to her on October 12, 2017. Petition at 1; Stipulation, filed at January 25, 2022, ¶¶ 2, 4. Petitioner further alleges that she received the vaccine in the United States, that she has 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 as a result of her alleged condition. Petition at 1, 4; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner’s right shoulder adhesive capsulitis or any other injury or condition was caused by her receipt of the flu vaccine, and further denies that petitioner sustained a SIRVA Table 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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 January 25, 2022, 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 $50,000.00 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.

01/19/2022 09:47 12705221107 JOHl'-l L STREET LI BRAR PAGE 02/05

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

AN.TTA MCDONALD, ) ) Petitioner, ) V. ) No. l 9•0855V ) Chief Special Master Corcoran.

SECRETARY OF HEALTH AND HUMAN ) ECF SERVICES, ~ _______________ Respondent. ) STIPULATION The parties hereby stipulate to the following matters: l. Anita McDonald, petitioner, filed 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 petitioner's rccei.pt of the influenza vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), C.F.R, § 100.3(a).

2. Petitioner received the influenza vaccinatior.i in her right ann on October 12, 2017, 3. The vaccine was administered within the United States.

4. Petitioner alleges that she suffered a .right shoulder adhesive capsulitis, as a result of receiving the influenza vaccine 1 and that sbe experienced residual effects of this injury for more than six months.

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

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6. Respondent denies that petitioner's alteged right shoulder adhesive capsulitis or any other injury or condition was caused by her receipt of the flu vaccine, and further denies that petitioner sustain.ed a SIRVA Table injury.

7. Maintaining their above-stated positions, the parties nevertheless no"v agree that tl1e issues between them shall be settled and that a decision slmuld be entered awarding the conipensation 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 co,mpcnsation.

pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services wHI issue the following vacci:n.e compensation payment: A lump sum of $50,000.00 in the form of a check payable to petitioner. This 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 42 U.S.C. § 300aa-2l(a)(1 ), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incuD"ed 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 Program is not primarHy 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 ct seq.)), or by entities that prov_ide health services on a pre-paid basis.

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11. Payment made pursuant to paragraph 8 of this Stipulation, and any amounts awarded pursuant to paragraph 9 of this Stipulation, will be made in accordance with 42 U.S.C. § 300aa- 1S(i), subject to the availabi.iity of sufficient statutOl)' funds.

12. The parties and their attorneys further agree and stipulate that, except for any award for attomeys' fees and litigation costs, and past unreimbursable 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-15(a) and (cl), 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, admini5trators, successors or assigns, does forever in-evocably and unconditionally release, acquit and discharge the United States at:1d the Secretary of Health and Human Services from any and all actions, causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or uature) 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 seq., on account ot: or in any way growing out of1 any and all known or unknown, suspected or unsuspected personal injuries to or dea.th of petitioner resulting from, or alleged to have resulted from, the influenza vaccine administered on or about October 12, 2017, as alleged by petitioner in a petition for vaccine compeusation filed on June 1.0, 2019, in the United States Court of Federal Claims as petition No. 19-0855\f.

14. If petitioner should die prior to eutry ofjlldgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or botb of the parties.

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15. lfthe special master fails to issue a decision in complete conformity with the tem1s of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity 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.

l 6. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injttry Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the pa1t 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 inju:ry or condition or in the items of compensation sought, js not grounds to modify or revise this agreement.

17. This Stipul.ation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the influenza vaccine caused petitioner to suffer a shoulder injury or her current disabilities, or any other injury or condition, or that petitioner sustained an injury contained in the Vaccine Injury Table.

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

END OF STIPULATION I I I I

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Respectfully submitted,

PETITIONER:

ANITA MCDONALD

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

,HEATHER MR~~ ?~ EMILY B. ASHE, ESQUIRE L. PEARLMAN ANAPOL WEISS Deputy Director North 18 th Street, Suite 1600 Torts Branch Philadelphia, PA 19 l 03 Civil Division (215) 735~8037 U.S. Department of Justice (215) 875-7730 Fax P.O. Box 146 [email protected] Benjamin Franklin Station Washington, DC 20044-0146

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

( ~ H. ~ n D& 7?~/ z:;;~"Sc-1 AJJ~k1,, ~ i j . e ~L y ~ CDR GEORGE REED GRIMES, MD, .l\frf>H CAivnLG M. COLLETT Director, Division of Injury Trial Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justice Health Resources and Services P.O. Box 146 Administration Benjamin Franklin Sta.tion U.S. Department of Health Washington, DC 20044-0146 and Human Services Tel: (202) 616-4098 5600 flshers Lane, 08N146B Email: [email protected] Rockville, MD 20857

Dated: o,Ii S /urz.,-Z...