Otero v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-0467V UNPUBLISHED

NANCY OTERO, Chief Special Master Corcoran Petitioner, Filed: February 16, 2022 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.

Terrence Kevin Mangan, Jr., U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On April 20, 2020, Nancy Otero 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”), a defined Table Injury, after receiving an influenza (“flu”) vaccine on November 19, 2018. Petition at 1, ¶¶ 1, 6; Stipulation, filed at Feb. 16, 2021, ¶¶ 1-2, 4. Petitioner further alleges that she received the vaccination in the United States, that she suffered the residual effects of her SIRVA more than six-months, and that neither she nor any other party has filed a civil action or received compensation for her SIRVA.

Petition at ¶¶ 1, 6-8; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner sustained a SIRVA, as defined in the Table; denies that the vaccine caused [P]etitioner’s alleged Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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.

2National 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). shoulder injury, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on February 16, 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 $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 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

3 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

NANCY OTERO, Petitioner, No. 20-467V Chief Special Master Corcoran V. ECF SECRETARY OF HEAL TH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: 1. Nancy Otero, petitioner, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l Oto -34 (the "Vaccine Program").

The petition seeks compensation for injuries allegedly related to petitioner's receipt of the influenza ("flu") vaccine, which is a vaccine contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a).

2. Petitioner received the flu vaccination in her left arm on November 19, 2018.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she sustained a left shoulder injury related to vaccination administration ("SIRVA") following receipt of the flu vaccine, within the Table time period, and suffered the residual effects of this alleged 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.

6. Respondent denies that petitioner sustained a SIRVA, as defined in the Table; denies that the vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury.

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 tenns of this 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 Services will issue the following vaccine compensation payment: A lump sum of$40,000.00 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-l 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. § 300aa-21(a)(l), and an application, the parties will submit to further proceedings before the Chief Special Master to award reasonable attorneys' 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 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 pre-paid basis.

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- l 5(i), subject to the avail ab ii ity of sufficient statutory funds.

12. The parties and their attorneys further agree and stipulate that, except for any award for attorneys' fees and litigation costs, and past unreimbursed 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 (d), and subject to the conditions of 42 U.S.C. § 300aa-l 5(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 United States and the Secretary of Health and Human Services 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-l 0 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 flu vaccination administered on November 19, 2018, as alleged by petitioner in a petition for vaccine compensation filed on or about April 20, 2020, in the United States Court of Federal Claims as petition No. 20-467V.

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 Chief Special Master fails to issue a decision in complete conformity with the tenns of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete confonnity with the tenns 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 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 or the Secretary of Health and Human Services that the flu 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. All 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 I I I I

Respectfully submitted, PETITIONER:

~~ ~y~N 'A ATTORNEY OF RECORD AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL:

LEAHV.DURA Principal Attorney 1J<~till?~~ Deputy Director Law Offices of Leah V. Durant, PLLC Torts Branch 1717 K Street NW, Suite 900 Civil Division Washington, DC 20006 U.S. Department of Justice Tel: (202) 775-9200 P.O. Box 146 Fax: (202) 652-1178 Benjamin Franklin Station Email: [email protected] Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: ~~ l<H~"'' [2· D~ ~ I Dr1/Sc-1 tn:51 A/J~~~ ~ ~ L Vtcv<.A.,---- CDR GEORGE REED GRIMES, MD, MPH TERRENCE K. MANGAN, JR. Director, Division of Injury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08N146B Tel: (202) 514-8988 Rockville, MD 20857 Email: [email protected]

Dated: oi, /1s/1.e1--1.....,