Marshburn v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-480V

STEPHANIE MARSHBURN, Chief Special Master Corcoran Petitioner, Filed: May 21, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Nancy R. Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner.

Katherine Edwards, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On January 11, 2021, Stephanie Marshburn 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 shoulder injury related to vaccine administration (“SIRVA”) after receiving an influenza (“flu”) vaccination on September 8, 2020. Petition at 1; Stipulation, filed at May 20, 2024, ¶¶ 1-4. Petitioner further alleges that she sustained her SIRVA within the time period set forth in the Table, that the vaccine caused her injury, and that she experienced the residual effects of this injury for more than six months. Stipulation at ¶¶ 4. “Respondent denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused petitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury. ” Stipulation at ¶ 6.

Nevertheless, on May 20, 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: 1) A lump sum of $75,000.00 in the form of a check payable to Petitioner; and 2) A lump sum of $2,500.00, representing reimbursement for a Medicaid lien for services rendered to petitioner by the State of North Carolina, in the form of a check payable jointly to petition and Office of the Controller, 2022 Mail Service Center, Raleigh, North Carolina 27699-2022, Case No. 352583.

Stipulation at ¶ 8. These amounts represent 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

STEPHANIE MARSHBURN, Petitioner, v. No. 21-480V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTII AND ECF HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: I . Stephanie Marshburn ("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 (''flun) vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table''), 42 C.F.R. § 100.3(a) 2. Petitioner received a flu vaccine in the left ann on September 8, 2020.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she sustained a shoulder injury related to vaccine administration ("SIRVA") within the time period set forth in the Table, and that the vaccine caused her injury.

She further alleges that she experienced the residual effects of this 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 alleged injury.

6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused petitioner's alleged sh.oulder injury, or any other injury; and denies that her current condition is a sequela 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)(l), the Secretary of Health and Human Services will issue the foJlowing vaccine compensation payments: (a) A lump sum of $75,000.00, payable to petitioner; and (b) A lump sum of $2,500.00, representing reimbursement for a Medicaid lien for services rendered to petitioner by the State of North Carolina, in the form of a check payable jointly to petitioner and Office of the Controller, 2022 Mail Service Center, Raleigh, North Carolina 27699-2022, Case No. 352583. Petitioner agrees to endorse this check to the Division of Health Benefits.

These amounts represent 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 42 U.S.C. § 300aa-2l(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.

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 under42 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 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 attorney's fees and litigation costs, and past unreimbursable expenses, the money provided pursuant to this Stipulation wilt 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-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 or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and an 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 September 8, 2020 as alleged in a petition for vaccine compensation filed on or about January 1 I, 2021, in the United States Court of Federal Claims as petition No. 21-480V.

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 confonnity 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.

t 7. This Stipulation sha11 not be construed as an admission by the United States or the Secretary of Health and Human Services that the flu vaccine caused petitioner's alleged injury or any other injury or her current disabilities, or that petitioner suffered an injury contained in the Vaccine Injury Table.

18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION s Respectfully submitted, PETITIONER:

STEPANIEMARS URN

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

y4A1#¼\i Q ~ NANCY. HEATHER L. PEARLMAN Attorney • ·ioner Deputy Director North Greene Street, Suite 2000 Torts Branch Greensboro, NC 27401 Civil Division (336) 645-3324 U.S. Department of Justice [email protected] P.O. Box 146 Benjamin frankfln Station Washington. DC 20044-0146 AUfHORIZED REPRf..SENTATIVE A'nORNEY OF RECORD FOR OFTHESECRETARYOFBEALTH RESPONDENT: AND HUMAN SERVICES: George R. Grimes,r.!lysignedbyGeorgell. •SI◄ -S14 • 202•.oueoa:11:(15--04'00' CDR GEORGE REED GRIMES, MD. MPH ~ ·I,«NEEDWS JG< lmlh Director, Division of Injury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division U.S. Department of Health U. S. Department of Justice and Humans Services P.O. Box 146 5600 Fishers Lane, 08W-25A Benjamin Franklin Station Rockville, MD 20857 Washington, DC 200#-0146 (202) 305-1586 [email protected]