Hartley v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-0292V UNPUBLISHED

SHARI HARTLEY, Chief Special Master Corcoran Petitioner, Filed: August 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)

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Dhairya Divyakant Jani, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On March 16, 2020, Shari Hartley 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”) resulting from an influenza (“flu”) vaccine received on October 2, 2018. Petition at 1; Stipulation, filed August 10, 2022, at ¶¶ 2-4. Petitioner further alleges the vaccine was received in the United States, her pain has lasted longer than six months, and neither Petitioner nor any other party has ever received compensation in the form of an award or settlement for her vaccine-related injury. Petition at ¶¶ 1, 11-12; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a SIRVA injury within the Table time period, and further denies that the flu vaccine caused petitioner to suffer a left shoulder injury 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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 10, 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 $101,255.72 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 * * * * * * * * >I< * * * * * * * * >I< >I< >I< >I< >I< >I< ***** >I< SHARI HARTLEY, * >I<

Petitioner, * * V. * No. 20-292V (ECF) >I< CHIEF SPECIAL MASTER >I< BRIAN H. CO RCORAN SECRET ARY OF HEALTH >I< >I< AND HUMAN SERVICES, >I<

Respondent. * * >I< >I< * * * * * * * * * * >I< * * * * * >I< >I< >I< ****** >I<

STIPULATION The parties hereby stipulate to the following matters: l . Shari Hartley, 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 an influenza ("flu") vaccine, which is a vaccine contained in the Vaccine Injury Table (the "Table''), C. F.R. § 100.3 (a).

2. Petitioner received the flu vaccine on October 2, 2018.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she suffered from a left shoulder injury related to vaccination administration ("SlRV A") as a result of receiving the flu vaccine, 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 SlRYA injmy within the Table time period, and further denies that the tlu vaccine caused petitioner to suffer a left shoulder injmy 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 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 ter1J1s of this Stipulation, and after petitioner has fi led an election to receive compensation pursuant to 42 U.S.C. § 300aa-2 I (a)( I), the Secretary of Health and I luman Services will issue the following vaccine compensation payment: A lump sum of$ IO1,255.72 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be availab le under 42 U.S.C. § 300aa-l 5(a).

9. As soon as practicable after the entry of j udgment on entitlement in this case, and after petitioner has fi led both a proper and timely election to receive compensation pursuant to U.S.C. § 300aa-2 l(a)(l), 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.

I 0. 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.

l 1. Payment made pursuant to paragraph 8 of this Stipulation an<l any amounts awarded pursuant to paragraph 9 of this Stipu lation wil l 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 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- I5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h).

13. ln 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, docs forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and l luman 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 Oct seq. , on account of, or in any way growing out of, any and al l known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the t1u vaccination administered on October 2, 20 18, as alleged by petitioner in a petition fo r vaccine compensation fil ed on or about March 16, 2020, in the United States Court of Federal Claims as petition No. 20-292V.

14. IJ 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 fai ls to issue a decision in complete conformity with the terms of this Stipu lation or if the Court of Federal Claims fai ls 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 Ch ildhood Vaccine Jnjury 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 IJuman Services that the flu vaccine caused petitioner to have a left shoulder injury, or any other injury or her current condition.

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

Respcctrull y ~ub111ittcd.

Pln'ITIONER:

AT'l'OH~EY OF R ECORD FOR AUT IIORIZEI> Rl<:PR ESENTATl \'E PETITIO~ER: OF T HE ATTOR'.\fEY GENERAL:

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C·ounscl lor Petitioner Law Offices of Leah V. Durant, Pl LC I k:p11l y l)ircclor Tons llr:im:h, Civil Division 17l7 K Street NW, Suite 900 U.S. Department or .Justice Washington, D.C. 2000(l f' .O Box 14(1 ldurnnt(!L durantll u:orn lknjamin l·rnnkltn Station \Vnsll ing.1011 , [)(' ~0044-0146

AlJTfl ORI ZED R E PRESE~T ATI VE ATTO RNEY OF R ECORl> FOR OF TIIF. SI::C RETARY OF II EALTII HES PO~ D ENT: AND H U:vtAN SE RV lCES: George R. Grimes - Dl<11t,1l1y i.1grwd hy t,,,.mJt' R Grlnw, ~It.

514 11,,to lUJJ07 J l 1/ :) I} 0<00 C'DR GEORC,E Rl:FD {iR IMJ:S, MD. MPII Dirc1,;hH, Division ur lnjury T1ial /\ttomcy Compcnsat ion Programs i'P11s Brandi. Civil Division l kalth Systems Hurcau U.S. lkpait111cnt ot'Ju~licL' I lcalth Resources and Sen ice" f' 0 . Box 14/i AJm i nislratio n lknjainin Franklin Stat ion U.S. Department of I Icalth and Washington. I)(' 2004•1-0 Iti() umnn Services 202-61 (1-•k1:'ih 5600 Fishers Lane, OX 1·1(,13 I '. m;iil: l)hairya.Ja nifc1. usdoJ .gnv Rockvi lle, :vm 20X57

Dated: