Pressley v. Secretary of Health and Human Services

Sn the Guited States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20-0698V

UNPUBLISHED

CHARLENE PRESSLEY, Chief Special Master Corcoran

Petitioner, Filed: June 10, 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)

Zachary James Hermsen, Whitfield & Eddy Law, Des Moines, IA, for Petitioner.

Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION'

On June 9, 2020, Charlene Pressley filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seqg.* (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on or about September 19, 2018. Petition at 1; Stipulation, filed on June 9, 2022, at 4 2, 4. Petitioner further alleges that she received the vaccine in the United States, that she 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 1-3; Stipulation at §§ 3-5. “Respondent denies that [P]etitioner sustained a SIRVA Table injury; denies that the vaccine caused [P]etitioner’s alleged shoulder injuries, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury. ” Stipulation at J 6.

Nevertheless, on June 9, 2022, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. | 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, | award the following compensation:

A lump sum of $100,000.00 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). /d. | 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.*®

IT IS SO ORDERED. s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS )

CHARLENE PRESSLEY, ) ) ) No. 20-698V

Petitioner, ) ) Chief Special Master Corcoran v. ) ECF )

SECRETARY OF HEALTH AND )

HUMAN SERVICES, ) )

Respondent. ) )

STIPULATION

The parties hereby stipulate to the followmg matters: l. Charlene Pressley, 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 receipt of the influenza (“flu”) vaccine, which vaccine is contained m the Vaccine Injury Table (the “Tabke”), 42 C.F.R. § 100.3 (a).

2. Petitioner received the flu vaccine on or about September 19, 2018.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she sustained a Shoulder Injury Related to Vaccme Administration (“SIRVA”) following her flu vaccine, within the time period set forth in the Table, or in the alternative, that her alleged shoulder injuries were caused by the vaccine. She further alleges that she experienced the residual effects of her alleged injuries for more than six months after vaccme administration.

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

6. Respondent denies that petitioner sustamed a SIRVA Table mgury, denies that the vaccine caused petitioner’s alleged shoulder injuries, or any other mjury; and denies that her current condition is a sequelae of a vaccine-related injury.

7. Maimtaming 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 $100,000.00 m 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 U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceedings before the 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 hable 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, insutance policies, Federal or 5/23/2022 14:26 5632420267 CLIPRINT PAGE 04/8

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. lJ. Payments made pursuant to paragraphs § and 9 of this Stpulation 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 them attorneys further agree and stipulate that, except for any award for attomeys’ fn and litigation costs, and past unteimbursable 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-15(g) and (h).

13. Inxeturn for the payment described in paragraph 8 and any amount awarded pursuant to paragraph 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 Ginchiding 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 seq., on account of, or m 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 fla vaccination administered on September 19, 2018, as alleged by petitioner in a petition for vaccine compensation filed on or about June 9, 2020, m the United States Court of Federal Claims as petition No. 20-698V.

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 im 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 i 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 kability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted i 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 ability and/or amount of damages, and further, that a change in the nature of the mmjury or condition or m 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 flu vaccine caused petitioner’s alleged shoulder injury, any other injury, or her current disabilities.

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

END OF STIPULATION @5/23/2622 14:26 5632420267

Respectfully submitted,

PETITIONER:

CHARLENE PRESSLEY

ATTORNEY OF RECORD FOR

PETITIONER:

Ml ( Li. cate

ZACH HERMSEN, ESQ.

Whitfield & Eddy Law

699 Walnut Street, Suite 2000

Des Moimes, IA 50309

Tel: (515) 288-6041

AUTHORIZED REPRESENTATIVE OF

THE SECRETARY OF HEALTH AND

HUMAN SERVICES:

George R. Grimes - Distal signed by Gearge R

S14 Date: 2022.05.19 14:20:20 -04'00

CDR GEORGE REED GRIMES, MD, MPH

Director, Division of Injury

Compensation Programs

Health Systems Bureau

Health Resources and Services

Administration

U.S. Department of Health and Human Services

5600. Fishers Lane, 08N146B

Rockville, MD 20857

Dated: @ - G- 22

CLIPRINT

PAGE 86/86

AUTHORIZED REPRESENTATIVE

OF THE ATTORNEY GENERAL:

Cot/—,

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: lang:

CLAUDIA B. GANGI

Senior Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, D.C. 20044-0146

Tel: (202) 919-6599

Emait [email protected]