Tyler v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-0548V UNPUBLISHED

GINA M. TYLER, Chief Special Master Corcoran Petitioner, Filed: July 21, 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)

Richard H. Moeller, Moore, Heffernan, et al., Sioux City, IA, for Petitioner.

Martin Conway Galvin, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On May 4, 2020, Gina M. Tyler 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 left shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, after receiving the influenza vaccine on October 11, 2018. Petition at 1, ¶¶ 4, 47; Stipulation, filed at July 20, 2022, ¶¶ 1-2, 4. In the alternative, Petitioner alleges that her left shoulder injury was caused by the influenza vaccine she received. Id. at 1-2. Petitioner further alleges that she received the vaccine in the United States, that she suffered the residual effects of her SIRVA injury for more than six months, and that neither she nor any other individual has filed a civil action or received compensation for her SIRVA injury. Petition at ¶¶ 4, 42, 48-49; 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 left shoulder injury, or any other

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). injury; and denies that her current condition is a sequelae of a vaccine-related injury.”

Stipulation at ¶ 6.

Nevertheless, on July 20, 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 $106,500.00 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

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

) GINA M. TYLER ) ) Petitioner, ) No. 20-548V V. ) Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN ) ECF SERVICES, j Respondent. j STIPULATION The pa11ies hereby stipulate to the following matters: 1. Gina M. Tyler, petitioner, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S .C. § 300aa- IO to -3 4 (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 received the flu vacc ination in her left arm on October 11, 2018.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration ("SIRVA") following the administration of a seasonal influenza ("flu") vaccine within the Table timeframe, and that she experienced residual effects of this injury for more than six months. ' !1

6. Respondent denies that petitioner sustained a SIRVA , as defined in the Table ; denies that the vaccine caused petitioner's alleged left 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 terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21 (a)( I), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $106,500.00, 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- 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 42 U.S.C. § 300aa-21 (a)( I), and an application, the parties will submit to fu11her 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 liable under 42 U.S .C. § 300aa- 15(g), to the extent that payment has been made or can reasonably be 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 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-l 5(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, 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 IO 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 vaccine administered on or about October 1 I, 2018, as alleged by petitioner in a petition for vaccine compensation filed on May 4, 2020, in the United States Court of Federal Claims as petition No. 20-548V.

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15. If the 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 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 Iiabi Iity 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. A II rights and obi igations of petitioner hereunder shal I apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION PETITIONER:

G~M. _

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

~ ~½'-.~ HEATHER L~ARLMAN Moore, Heffernan, et al Deputy Director Pierce Street Suite 300 Torts Branch P.O. Box 3207 Civil Divisiol'.

Sioux City, IA 51102-3207 U.S. Department of Justice Tel: 712-252-0020 P.O. Box 146 E-mail: [email protected] Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: Ai1'ffi HUMAN SERVICES: Digitally signed by George R• GeorgeR.Grimes-S14 Grimes _514 CDR GEORGE REED GRIMES, MD, MPH ~~~~~~022.06.3014:46:23 ~~JIA.'4/ MARTIN C. GALVIN ~ J.tJ~ Director, Division of Injury Trial Attorney J Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Deparbnent of Justice Administration P.O. Box 146 l l ~ no.,...,~o. ....+ ,...,e U .-..,- lt-t... Do.-n~n.__:...,. C'.-o,nlrUn <:tat-inn