Fulcher v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0245V

ELLEN FULCHER, Chief Special Master Corcoran Petitioner, Filed: September 10, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

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

Adam N. Muffett, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On January 7, 2021, Ellen Fulcher filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”), which she amended on January 25, 2023. Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received on September 22, 2020. Amended Petition at 1; Stipulation, filed September 9, 2024, at ¶¶ 2-4. Petitioner further alleges that the vaccine was administered in the United States, she suffered the residual effects of her condition for more than six months, and neither Petitioner, nor any other party, has received compensation in the form of an award or settlement for Petitioner’s vaccine-related injury.

Amended Petition at ¶¶ 1, 5, 8, 10; Stipulation at ¶¶ 3-5; Ex. 1. “Respondent denies that petitioner sustained a SIRVA Table Injury; denies that petitioner’s alleged shoulder injury

Nevertheless, on September 9, 2024, 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 $25,000.00 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

I N TH E UNITED STATES COURT OF FEDE RAL CLA IMS OFFICE OF SPECIAL MASTERS ) ELLE FULCI I ER. ) ) Petitioner, ) ) o. 2 I -245V (ECF) V, ) Chi ef Special Master Corcoran ) SECRETA RY OF HEALTH ) AND H UMAN SE RV ICES, ) ) Respondent. ) _________________) STIPULATION The parties hereby stipulate to the fol lowing matters: I . Ellen Fulcher, petitioner, filed a petition for vaccine compensa tion under the National Vaccine Inj ury Compensation Program, 42 U.S.C. *300aa- l Oto -34 ("Vaccine Program "). The petiti on seeks compensation for injuries al legedly related to petitioner's receipt of the influenza (''flu" ) vaccine, which vaccine is contained in the Vaccine Inj ury Table ("Table"), 42 C. F.R. § 100.3(a).

2. Petitioner received the flu vaccination in her left shoulder on September 22, 2020.

3. The vacci ne was administered w ithin the United States.

4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Admini stration ("S IRVA") wi thin the time period set forth in the Table, and that she experienced residual effects of this injury for more than si x months.

5. Petitioner represents that there has been no pri or award or settlement of a civi l action for damages on her bchal fas a resul1 of her condition.

6. Respondent denies that petitioner sustained a SIRVA T able I.njury, deni es that petiti oner 's alleged shoulder injury was caused-in-fact by rhc tl u vaccine, and denies that the flu vaccine caused petitioner any other injury or her current condi tion.

7. Maintaining tl1cir above-stated positions, the parties nevertheless now agree that the issues between them shall be settl ed, and that a decision should be entered awarding the compensation clescribccl in paragraph 8 of thi s Stipulation.

8. As soon as practicable after an entry of j udgmcnt rcflccti ng a decision consistent with the terms of thi s Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2 I (a)( I ), the Secretary of [ lea Ith and Human Services will issue the follow ing vacci ne com pcnsa1ion payment: A lum p sum of $25,000.00 in the fom1 ofa check payable ro petitioner. Thi s amount represents compensation for all damages that wou ld be avai Iable under 42 U.S.C. § 300mi- 15(a).

9. As soon as practicable after the entry of judgment on entitl ement in this case, and after petitioner has filed both a proper and timely election to receive compensati on pursuaI1t to 42 U.S.C. § 300aa-2 l (a)( 1), and an application, the parties will submit to further proceedings before the special master to award reasonable attom cy fees and costs incurred in proceeding upon this petition.

I 0. Petitioner and her attorney represent that compensation to be provided pursuant to thi s Stipulation is not for any items or servi ces for w hich the Program is not primarily liable under 42 U.S.C. § 300aa- I 5(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, insura nce policies, Federal or State health benefits programs (other than Title X IX of the Social Security Act (42 U.S.C. ~ 1396, e1 seq.)), or by entities that provide health services on a pre-paid basis.

I I. 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 avai la bi I ity of sufficient statutory funds.

12. The parties and their attorneys further agree and stipulate that, except for any award for attorney fees and litigation costs, and past unreimbursable expenses, the money provided pursuant to thi s Stipulation will be used solely for the benefit of petitioner, as contemplated by a stri ct constructi on of 42 U.S.C. § 300aa- 15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa- I 5(g) and (h).

13. In rctllrn for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity and on behal f of her heirs, executors, administrators, successors or assigns, docs forever irrevocabl y and unconditionally release, acquit and di scharge the United States and the Secretary of l lcalrh and Human Ser vi<.:es from any and all actions, causes of action (including agreements, j uclgmcnts, claims, damages, loss of services, expenses and al I demands of w hatever 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, th e flu vaccine administered on or about September 22, 2020, as al lcgcd by r cririoner in a petiti on for vacci nc compensation filed on January 7, 202 I, in the United States Court of Federal Claims as petition No. 2 l -245V.

14. I f petiti oner should die prior to entry of judgment, thi s agreement shall be voidable upon proper notice to the Court on behalf of ei ther or both of the parties.

15. I f the Chief Special Master fails to issue a deci sion in compl ete con formi ty with the term s o f this Stipulati on, or if the Court of Federal Claims fai ls to enter j udgment in con formity with a decision that is in complete con formity w ith the terms of thi s Stipulati on, then the parties' settl ement and thi s Stipulation shal l be voidable at the sole discretion of either party.

16. T his Stipulation expresses a ful l and complete negotiated settl ement of liabi lity and damages claimed under the National Chi Idhood Vacci ne Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutel y no agreement on the par t 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. T he parties further agree and understand that the award described in thi s stipulati on may reflect a compromi se of the parti es' respecti ve positions as to liability and/or amount of damages, and further, that a change in the nature of the inj ury or condition or i n the items of compensation sought, is not grounds to modify or revise thi s agreement.

17. T his Stipulati on shal l not be construed as an admission by the United States or the Secretary of I lealth and I luman Ser vices that the fl u vaccine caused petitioner' s all eged shoulder injury or any other inj my.

18. A ll ri ghts ancl obl igations of petitioner hereunder shal l apply equal l y to petitioner's heirs, executors, administrators, successors, and/or assigns.

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