Malone v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-0506V UNPUBLISHED

SARAH MALONE, Chief Special Master Corcoran Petitioner, Filed: August 1, 2022 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Influenza HUMAN SERVICES, (Flu) Vaccine; Cellulitis Respondent.

Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Christine Mary Becer, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On April 27, 2020, Sarah Malone 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 cellulitis resulting from an influenza (“flu”) vaccine received on September 13, 2018. Petition at 1; Stipulation, filed August 1, 2022, at ¶¶ 2-4. Petitioner further alleges the vaccine was received in the United States, 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 on her behalf as a result of her condition. Petition at ¶¶ 2, 18-19; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused petitioner to suffer from cellulitis or any other injury or her current condition.” 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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 August 1, 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 $35,000.00 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

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 ) SARA H MALONE, ) ) Petitioner, ) ) No. 20-506V V. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERV ICES, ) ) Respondent. ) ________________ ) STIPULATION The parties hereby stipu late to the following matters: I . Sarah Malone, petitioner, tiled a petition fo r vaccine compensation under the National Vaccine Inj ury Compensation Program, 42 U.S.C. §§ 300aa- 10 to -34 (the "Vaccine Program"').

The petition seeks compensation for inj uries alleged ly related to petitioner's receipt of an inCT uenza (''fl u") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), C.F.R. § I00.3(a).

2. Petitioner received a fl u vaccine, allegedly in her left arm, on September 13, 20 18.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she suffered from cellul itis as a result of her nu vaccine and further alleges that she experienced the residual effects of her 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 the flu vaccine caused petitioner to suffer from ce llulitis or 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 dec ision should be entered awarding the compensation described in paragraph 8 of thi s Stipu lation.

8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has fil ed an election to rece ive compensation pursuant to 42 U.S.C. § 300aa-2 l(a)( l ), the Secretary of Health and Human Services wi ll issue a lump sum of $35,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be avai lable under 42 U.S.C. § 300aa- I 5(a).

9. As soon as practicab le after the entry of judgment on entitlement in thi s case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to U.S.C. § 300aa-2 I(a)( I), 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 lo be provided pursuant to this Stipulation is not fo r any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa- I5(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, insurance pol icies, Federal or State hea lth 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.

I I. Payment made pmsuant to paragraph 8 of this Stipulation and any amounts awarded pursuant to paragraph 9 of this Stipu lation will be made in accordance with 42 U.S.C. § 300aa- l 5( i), subject to the avai lability of sufficient statutory fu nds.

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 Stipu lation will be used so lely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa- l 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa- I 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, adm inistrators, successors or assigns, docs forever irrevocably and unconditionally release, acqu it and discharge the United States and the Secretary of l lealth and Human Services from any and all actions or causes of action (includ ing agreements, judgments, claims, damages, loss of services, expenses and all demands or 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- IOet 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 September 13, 20 18, as alleged by petitioner in a petition for vaccine compensation filed on or about Apri l 27, 2020, in the United States Court of l'ederal Claims as petition No. 20-506Y.

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 fail s to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fa ils to enter j udgment 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 fu ll and complete negotiated settlement of liability and damages claimed under the National Childhood Vacc ine Injury /\ct 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 express ly stated and clearly agreed to. The parties further agree and understand that the award described in th is Stipulation may ret7ect 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 mod ify or revise this agreement.

17. Thi s Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the nu vaccine caused petitioner's alleged ce llul itis 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 I I I I I I I I I I I

Respectfully subm itted,

cizal~ SARAH MALONE

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

,MJ ~w~ HEATHER L. PEA RLMAN Muller Brazil Deputy Director Twining Road, Suite 208 Torts Branch Dresher, PA 19025 Civil Divi sion Tel: (215) 885-1655 U.S. Department of Justice [email protected] P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0 146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Digitally signed by George George R. R, Grimes ·S14 Date: 2022.07.21 17:19:42 Grimes-514 -04'00' CDR GEORGE REED GRTMES. MD, MPH CHRISTINE M. BECER Director, Division of Injury Tria l Attorney Compensation Programs Torts Branch. Civ il Division Health Systems Bureau U.S. Department of Justice Health Resources and Services P.O. Box 146 Administration Benjamin Franklin Station U.S. Depat1ment of Health Washington, DC 20044-0 146 and Human Services Tel: (202) 6 l 6-3665 5600 Fishers Lane, 08N 146B christine. m [email protected] Rockville, MD 20857 Dated: f{/1 /?2: