Dunlap v. Secretary of Health and Human Services

Sn the Gnited States Court of Federal Clanns OFFICE OF SPECIAL MASTERS * RRR RR KK RK KK KR RK KR RRR OF AMY DUNLAP, ** ** No. 17-1353V Petitioner, ** Special Master Christian J. Moran * V. ** Filed: June 30, 2022 * SECRETARY OF HEALTH ** Stipulation; influenza (“‘flu’’) vaccine; AND HUMAN SERVICES, ** brachial neuritis. * Respondent. ** ke KKK KKK KK KK KK KKK KK KOK Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner; Alexis B. Babcock, United States Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION' On June 30, 2022, the parties filed a joint stipulation concerning the petition for compensation filed by Amy Dunlap on September 27, 2017. Petitioner alleged that the influenza (“flu’’) vaccine she received on November 24, 2015, which is contained in the Vaccine Injury Table (the “Table’’), 42 C.F.R. §100.3(a), caused her to suffer from brachial neuritis. Petitioner further alleges that she suffered 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 on her behalf as a result of her condition.

Respondent denies that the flu vaccine caused petitioner to suffer from brachial neuritis or from any other injury or her current condition.

! The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).

Any redactions ordered by the special master will appear in the document posted on the website.

Nevertheless, the parties agree to the joint stipulation, attached hereto. The undersigned finds said stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

Damages awarded in that stipulation include: A lump sum payment of $51,500.00 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).

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment according to this decision and the attached stipulation.”

IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master

Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS AMY DUNLAP, Petitioner, No. 17-1353V “. Special Master Moran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: 1, Amy Dunlap, petitioner, filed a petition for vaccine compcnsation, as amended, 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 in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).

2. Petitioner reccived a flu vaccine on November 24, 2015.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she suffers from brachial neuritis as a result her flu vaccine.

Petitioner further alleges that she experienced the residual effects of her injury for morte 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 the flu vaccine caused petitioner to suffer from brachial neuritis. Respondent 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 (hat 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 afler 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 $51,500.00 in the form of a check payable to petitioner. This amount represenis 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-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 they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), including 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 entities that provide health services on a pre-paid basis.

11, Payment made pursuant to paragraph 3 and any amounts awarded pursuant to paragraph $ 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 attorneys’ 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 (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, exccutors, 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-10 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 24, 2015 as alleged by petitioner in her petition for vaccine compensation filed on September 27, 2017, in the United States Court of Federal Claims as petition No. 17-1353V, 14. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of cither or both of the parties.

15, Ifthe 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 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 partics 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 vaccination caused petitioner to suffer brachial neuritis or any other injury.

18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns, END OF STIPULATION Respectfully submitted, PETITIONER: Deg 0 AMY DUNLAP ATTORNEY OF RECORD FOR PETITIONER:

LEAH V, DURANT Law Offices OF LEAH V. DURANT, PLLC 1717 K Street NW, Suite 900 Washington, DC 20006 Tel: (202) 775-9200 Email: [email protected] AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES: Georg eR, Grimes - : Digitally signed by George R. * Grimes S14 $14 Date; 2022.06.13 19:89:34 -04'00"

CDR GEORGE REED GRIMES, MD, MPH Duector, Division of Injury Compensation Programs Health Systems Bureau Health Resources and Services Administration U.S. Department of Health and Human Services Fishers Lane, 08-N146B Rockville, MD 20857 Dated: CO hee fA.

AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL; athe St Vee a 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: ALEXIS O Friatatomey AGS Stant Pivector Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 Tel: (202) 616-367% 7678 Email: [email protected]: Olek S. Ppa betoc