Parsloe v. Secretary of Health and Human Services

Sn the Gunited States Court of Federal Clams OFFICE OF SPECIAL MASTERS Filed: August 31, 2022 ok ok ok ok ok ok ok ok ok ok ok ok ok GORETT PARSLOE * Unpublished ok ok Petitioners, * No. 17-1920V ok V. * Special Master Gowen ok SECRETARY OF HEALTH * Decision on Stipulation; Influenza; AND HUMAN SERVICES, * Shoulder Pain. ok Respondent. * ok ok ok ok ok ok ok ok ok ok ok ok ok Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, D.C., for petitioner.

Catherine E. Stolar, U.S. Department of Justice, Washington, D.C., for respondent.

DECISION ON STIPULATION!

On December 11, 2017, Gorett Parsloe (“petitioner”) filed a petition in the National Vaccine Injury Compensation Program.” Petition (ECF No. 1). Petitioner alleged that she had shoulder pain, after receiving the influenza (“flu”) vaccination on October 2, 2016. Id. at Preamble.

On August 31, 2022, respondent filed a stipulation providing that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 60). Respondent denies that the flu vaccine is the cause of petitioner’s shoulder pain, brachial neuritis and/or Parsonage- Turner syndrome. /d. at 6. Nevertheless, maintaining their respective positions, the parties now agree that the issues between them shall be settled and that a decision should be entered

' Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (201 2), because this opinion contains a reasoned exphnation for the action in this case, I intend to post it on the website of the United States Court of Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/agere gator/sources/7. Before the opinion is posted on the court’s website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the opinion. /d. Ifneither party files a motion forredaction within 14 days, the opinion will be posted on the court’s website without any changes. /d. * The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No.99-660, 100Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10to 34(2012) (hereinafter “Vaccine Act” or“the Act”). Hereimafter, individual section references will be to 42 U.S.C. § 300aa of the Act. awarding the compensation according to the terms of the stipulation attached hereto as Appendix A. Id. at 7.

The stipulation provides: A) A lump sum of $97,500.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under U.S.C. § 300aa-15(a).

Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the stipulation and this decision.+ IT ISSO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master

> Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a).

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

) GORETT PARSLOE, ) ) Petitioner, ) No. 17-1920V ) Special Master Gowen V. ) ECF ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ) STIPULATION The parties hereby stipulate to the following matters: 1. Gorett Parsloe (“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 an influenza (“flu”) vaccine, which is a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).

2. Petitioner received the flu vaccine on October 2, 2016.

3. The vaccination was administered within the United States.

4. Petitioner alleges that she suffered “injuries, including Shoulder Pain,” “caused in fact by the influenza vaccination she received,” and has suffered the residual effects of her alleged injury for more than six months. Petition (ECF No. 1) at 1-2. Petitioner also avers that she has been diagnosed with brachial neuritis and/or Parsonage-Turner Syndrome that was “precipitated by the influenza vaccine” she received. Affidavit (ECF No. 7-11) at 2-3.

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 a Table injury of Shoulder Injury Related to Vaccine Administration (“SIRVA”), “Shoulder Pain,” brachial neuritis and/or Parsonage-Turner Syndrome, 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)(1), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $97,500.00 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).

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 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.

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- 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 wil! 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, 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 (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 October 2, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or about December 11, 2017, in the United States Court of Federal Claims as petition No. 17-1920V.

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 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 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 petitioner sustained a Table injury for SIRVA, “Shoulder Pain,” or brachial neuritis and/or Parsonage-Turner Syndrome, or that the flu vaccine either caused or significantly aggravated petitioner’s alleged injury 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: Lpiied” bead tore.

GORETT PARSLOE ATTORNEY OF RECORD FOR PETITIONER: Sys LEAH V.DURAKNT Law Offices of Leah V. Durant, PLLC 1717 K Street N.W., Suite 900 Washington, D.C. 20006 Tel.: (202) 775-9200 Fax: (202) 652-1178 Email: [email protected] AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES: George R. Grimes - Digitally signed by George R. Grimes-514 $14 Date: 2022.08.19 15:15:29 -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: ¥7/ 31 / ge AD AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL: 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: Litfarine € Mere CATHERINE E. STOLAR Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 Tel.: (202) 353-3299 Fax: (202) 616-4310 Email: [email protected]