Wanner v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0515V

STEPHANIE WANNER, Chief Special Master Corcoran Petitioner, Filed: May 7, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.

Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On January 11, 2021, Stephanie Wanner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). On September 23, 2022, Petitioner filed an amended petition. Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received on September 24, 2020. Amended Petition at 1; Stipulation, filed May 6, 2024, at ¶¶ 2-4. Petitioner further alleges that the vaccine was administered in the United States, she suffered the residual effects of her injury for more than six months, and no lawsuits have been filed or settlements or awards accepted by anyone, including Petitioner, due to her vaccine-related injury. Amended Petition at ¶¶ 9-11; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner suffered the onset of her alleged SIRVA within the Table timeframe; denies that the flu vaccine caused

Nevertheless, on May 6, 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 $32,918.00 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

STEPHANIE WANNER, Petitioner, No. 2 1-515V Chief Special Master Corcoran V. SPU SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STTPULATION The parties hereby stipu late to the fo llowing matters: I. Petitioner, Stephanie Wanner, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa- l O to 34 (the "Vaccine Program"). The petition seeks compensation for injuries alleged ly related to petitioner' s receipt of the influenza ("flu") vaccine, which vacci ne is contained in the Vaccine Injury Table (the ''Table"), 42 C.F. R. § I 00.3 (a).

2. Petitioner received a fiu vaccine on or about September 24, 2020.

3. The vaccine was admin istered within the Un ited States.

4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Adininistration ("S fR VA") as a consequence of the flu immunization she received on or about September 24, 2020, and further alleges that she suffered 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 condition.

Page I of 5 6. Respondent denies th at petitioner suffered the onset of her al leged STRVA within the Tab le timeframe; denies that the flu vaccine caused petitioner's al lcged shoulder injury or any other inj ury and furth er denies that her current disabil iti es are a sequel a 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 thi s Stipulation.

8. As soon as practicable after an entry of judgment reflectin g a decision consistent with the terms of th is Stipul ation, and after petiti oner has fi led an election to receive compensation pursuant to 42 U.S.C. § 300aa-2 I (a)(I ), the Secretary of Health and Human Servi ces wi ll issue the fo llowing vaccine compensati on payment: A lump sum of $32,9 18.00, in the fo rm of a check pay able to petiti oner, representing compensati on for all damages that woul d be available under 42 U.S.C. § 300aa-15(a) .

9. As soon as practicable after the entry of judgment on entitlement in thi s case, and after petitioner has filed both a proper and timely election to receive compensati on pursuant to 42 U .S.C. § 300aa-2 I (a)( I), and an appl ication, the parti es w ill submit to furth er proceed ings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon thi s petition.

10. Petitioner and her attorn ey represent th at they have identifi ed to respo11dent all kn own sources of payment fo r items or servi ces for w hich the Program is not primarily liab le under 42 U.S.C. § 300aa- I 5(g), including State compensation programs, insurance policies, Federal or State health benefits programs (other than T itle XIX of the Social Security Act (42 U .S.C. § 1396 et seq.)), or entit ies that provide health services on a prepaid basis.

Page 2 of 5 11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded pursuant to paragraph 9 w ill be made in accord ance with 42 U.S.C. § 300aa- l 5(i), subject to the avai labil ily of sufficient statutory fu nds.

12. The parties and their attorn eys further agree and stipulate that. except for any award for attorn ey' s fees and litigation costs, and past unreimbursable expenses, the money provided pursuant l o this Stipulation wi ll be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa- I 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa- I 5(g) and (h).

13. l n return for the payments described in paragraphs 8 and 9, petitioner, in her ind iv idual capacity, and on behal f of her heirs, executors, administrators, successors, and assigns, does forever irrevocably and unconditionally release, acqu it and discharge the U nited States and the Secretary of Health and Human Services from any and all acti ons or causes of action (includ ing agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever k ind or nature) that have been brought, could have been brought, or could be timely brought in the U nited States Court of Federal C laims, under the National V accine Injury Compensation Program, 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 vaccination adm inistered on or about September 24, 2020, as alleged by petitioner in a petition for vaccine compensation fi led on or about January 11 . 202 1 in the Un ited States Court of Federal C laims as petition No. 2 1-5 1SV.

14. If petitioner should die prior to entry of judgment, thi s agreement shall be vo idable upon proper notice to the Court on behalf of either or both of the parties.

Page 3 of 5 15. If the special master fa ils to issue a decision in complete conform ity with the terms of this Stipulation or if the Un ited States 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 fu ll 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 do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that th e award descri bed 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 Stipu lation 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's alleged shoulder injury or any other injury or any of her current disabilities.

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

EN D OF STIPULATION

Page 4 of 5 Respectfu Ily submitted,

PETITIONER:

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: /<.1nJtl. c.f-6/flJA. 4 fl~tk¼...Du:JJ£. --M -16Jd4.M\f..P eo a.J.M--- RONALD C. HOMER, ESQ. M,.8!,/l(i1.,; HEA TH ERL. PEARLMAN Conway Homer, P.C. Deputy Director Shawmut Street Torts Branch Boston, MA 021 16 Civil Division Te l: (6 17) 695-1990 U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washi ngton, DC 20044-0146

AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR THE SECRETARY OF HEALTH AND RESPONDENT: HUMAN SERVICES: George R. Grimes - Digitally signed by George R. Grlme1-S 14 kcJL~ (3 c{'-UV)~ ~ S14 Date: 2024.04.28 08:40:45 •04'00' k,,y ~ O ~ / \ L- f (! <U)..A./\f------ CDR GEORGE REED GRIMES, MD, MPH MA LLORI B. OPENCHOWSKI Director, Division of Injury Trial Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S . Department of Justice Health Resources and Services P.O. Box .146 Administration Benjamin Franklin Station U.S. Department of Health Washington, D.C. 20044-0146 and Human Services Tel: (202) 305-0660 5600 Fishers Lane, 08W-25A mallori [email protected] Rockville, MD 20857

Dated: o.s /ol, / zoZLf

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