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United States Court of Federal Claims, 2024

Ogden Erickson v. Secretary of Health and Human Services

Ogden Erickson v. Secretary of Health and Human Services
United States Court of Federal Claims · Decided March 29, 2024 · Brian H. Corcoran
Ogden Erickson v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1395V

LORI KATHLEEN OGDEN Chief Special Master Corcoran ERICKSON, Filed: February 27, 2024 Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Douglas Lee Burdette, North Bend, WA, for Petitioner.

Mitchell Jones, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On May 25, 2021, Lori Kathleen Ogden Erickson 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 September 15, 2020. Petition at 1; Stipulation, filed February 27, 2024, at ¶¶ 2-4.

Petitioner further alleges that the vaccine was administered in the United States, she had pain, weakness and impaired movement and function in her left shoulder for a period in excess of six months after vaccination, and she has never received compensation in the form of an award or settlement for her vaccine-related injuries or filed a civil action for her injuries prior to this petition. Petition at ¶¶ 3, 6, 8; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused petitioner’s alleged injury, or any other injury, and

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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. 2 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 (2018). further denies that petitioner’s current disabilities are sequelae of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on February 27, 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 $30,000.00 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

3 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 Tim Ul\rn:n STATES ('OlJRJ' OF FEDERAL CLAIMS Of-TICE OF SPECIAi . MASTEHS

LORI Ki\TIILl~LN OUDEN !· RICKSON .

Pl:titioncr, ) ) No. 21-IJ95V (ECF) V. ) Chief Spcci:11 Master Con:ornn ) SLCRETARY OF IIEALTII ) AND IIUMi\N SLRVICES. ) ) R cspon<lcnl. _________________ ) )

STIPULATION The part ic:- hen:by s1ip11lat<.: to the following mailers:

umkr tht" Nat ional \'a<.:l:illl' Injury Compcm,atio11 Prog.ra111 . -l'.2 U.S .C. ~~ 300.ia· IOet ·" ''/· (the "V~ccine f>rogr.-un .. ). l'he petition sc~ks <.:ompcnsation for injuries allegedly rd.ih:d to pet itioner 's receipt of an inllucn1.a ("llu") vaccine. which vaccine is contained in the Va<.:cinc Injury Tahk (the ''Tahlc''), 42 C.F.R. *100.J(a).

2. Pl.!lilioncr rc<.:ciH:d :t 1111 va<.:cinc on Scplcmhcr 15. 2020 in her ld i arm.

3. The vaccination was .1dminis1cn.:d within lhl' United States.

4. Pcti1iont:r alleges that she suswinc<l a shoulder injury related to vaccine admini~tration (' '$11-{VA") a'- ~ct forth in the T;1blc. Petitioner ti1rthcr alkges that she experienced thi.: residual cfli::cts of this rondition for more th.in si~ months.

5. Pctitiont:r represents that there has hecn 11tl prior award or sclllcmcnt or .i civil action for damages on her behalf as a result of h1:T condition.

6. Respondent denies that the nu vaccine cau!-cd pclitioncr·s alleged injury, or any other injury, and further denies that pclitioncr·s current disabilities arc scqudat' or a vm:cinc-relatt:d 111,1ury.

7. Maintaining their ,thti, ~·-.-..lated posit ions. the p.irt ics n,..-v~11hclc:;s nc,"· agrt'l' that the issues bctwl'cn them shall be sct1lcd and that n decision c,hould he entered awarding 1lw compensation ckscrihccl in pnragraph 8 of this Stipulation.

8. As soon .i:-, pn:tl·tit.:ubh: alier an t:nll)' of judgment rctkcting a deci~inn consistent "ith tht terms of' this Stipulati(m. and alter petitioner has filc<l an ckction to receive ,ompt:nsatio11 pur'iunnr 1042 U.S.C. ~ 300aa-2I(a)(I), the Secretary of'fleallh and lluman Scrvkcs \\ill issue the follo\\ing vaccine compensation payment: /\ lump sum or$30,000.00, in thr: form or a check payable to petitioner. This amount rcprescn1s compensation for all damages that would he .ivailahle under 42 U.S.C. -~ 300;1.1-) 5( a).

9. As soon as practicable alier the entry ofjudgmcnt on entitlement in this case, and alit:r pcti1ioncr has tiled hoth a proper and timdy election to receive compensation pursuan1 lo 42 l 1.S.C. ~ 300aa-2 l(a)( I). and an application, the parties \\.ill submit lo further proceedings bcforc the ,1;pc1:ial master to award reasonable attorneys· foes and costs incurred in proceeding upon this petition.

I 0. Petitioner and her auomcy represent that compensation to be provided pursuant to this Stipulution is 1101 for any items or services for which 1hc Program is not primari ly liahk under 42 lJ .S.C. ~ 300aa-15(g), to the extent that paymcnl has hccn made or can n:asonahly be expected w oc made under any State compensation progrnms. insurance policies. Federal or State health bcnctits programs (other than Title XIX of the Social Security A1.:1 (42 U.S.C. § 1396 ~t :-.e4.) ). or by entities 1ha1 provide health .services 011 a pre!-paid basi~.

I I. Payim:nl made p11r~t1ant 10 paragraph Xof thb Stipulation and any anHHmts ,mun.led pursuanc lo parnfraph 9 of this Stipulation" ill be made in accordance with 42 U.S.l'. *J00aa- 15( i ). s11hjcc110 the availability of sufficient s1atu1ory funds.

12. The parties a11<l their allorncys ltirthcr agree and stipulate that. except for any award for anornl!ys· lees .ind li1ig.(11ion costs. an<l past unrl!imbursablc expenses, 1lw money provided pursuant to this Stipulation will he used ~olcly for pclitioncr"s bc11di1 as contcmplmctl hy a strict constrnction of 42 lJ.S.C. ~* :lO0aa-15(:t) and (<l). and sutljccl to the conditions of 42 U.S.C *~ 300aa- I5(g) .ind (h).

13. In return for thl' pnymcnts described in paragraphs 8 and 9. pet it inner, in her 1mli\'i<llwl capacity. an<l on hchal r or her h,:irs, executors. administrators. sm:cessors or assign~. tlm:s rorcvcr irrc.:, oi.:ably and uncond itionally rdease. acquit and discharge the United States and the Sccn:tar1 of Ikahh and I luman Services from any and all actions or causes of action (including ,lgrccmenls, judgments, claim!-. damages. loss of services. -:xpcnses an<l all demands of wha1cn:r kind or nature) that have been brought. could have been brought. or could be timdy brought in the Court of Federal Claims. under the National Vaccine lnjmy Compcm,ation Program. 42 ll.S.C. *300aa-10 .wq.. on account of. or in any way growing out 01: ~my and all e1 known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from. or alleged to ha\'c resulted from. the flu vaccination administered on Scptcmhc,· 15. 2020. as alleged by petitioner in a petition likd on May 25. 2021 , in th!! United States Court of Fc<lcral Claims ,,s petition No. 2 I- I 395V.

l<i. If petitioner should die prior 10 entry ofjudgmcnt, this agreement shall hl' rni<lablc upon propl!r noticr 10 the Court on bl·hal for either or both of the: parii~s.

15. If the special master foils to i!->sut.:' a <lecision in complete conformity with th(· tcnns of this Stipulation or if the Court or Federal Claims foils to cnh:r judgmcn1 in conformity with a tkcision that is 111 rnmplctc conformity with the 1cnns or this Stipulation. then the parties· sdtkmcnt and this Stipulation shc1ll he voidahk ,u the sole discretion of either party.

I(). !'hi:-. Stipulatio11 cxpr(:s~cs a hill anc.1 complch: nti::oti~1tcd scttlc1m:n1 of liability and danwgc:-. danncd under the Na1ional Childhood Vaccine Injury Act of l9~(l. a~ :11m:nd1.•d. c.xct.!pl as other\.\ i-;i: noted in parngraph 9 ahovc . There is ab~olutdy no agreement on the part of the partic~ hereto to make any payment or lo <lo any act or 1hing othn than is herein expressly ,;tatl!d an<l ckarly agreed to. The parties r1111hcr .igrcc .md u11<krstand tlrnt the ,l\\ard dcs-.:ribcd in this Stipulation may rctlc<.:t a compromise of the pc111ics· rc:;pcctivc positions a!'- to liability and/or amo111H ()f damages. an<l fu1thcr, that a change in the natur<.: oftht injury or co11ditio11 or in the items of <.:omp1.~nsc1tion sought. is not grounds to modify or revise this agreement.

17. This Stipulation shall not bi: com,tru~d a!- an admission by the United States or the Sccrct.iry or I li..:allh and Ilumnrt St:rv tcl:s that the llu \•aceim.- caused pclilHllll"t' ·s al kgcd injury. or any other injury. or that her cum~nt disahilitics are sequdac of' her ~1llcgcd \ a-.:1.:ine-rclatcd m,1ury.

IX . /\II right,; and ohligatitins or pc!itiom.:r hereunder sl1;1II apply equally to pctiti(incr·s heirs, c>.ccutors, administrators, suc<.:cssors, and/or assigns.

END OF STIPULATION PETITIO:'IER:

~ / _( ·- I ORI K1\Tlll.r·FN OGl>EN H{lCKSON

ATTORNEY Of RECORD AUTIIORIZE0 REl'RESENTA Tl\'E FOR PETITIONER: OF THE ATTORl'iF.:Y (;F..:'I.F.:RAL:

/U:;:Bt1H Kl:U YD. BUIH)l:TTl -~ ~\1-P~ I ILATI 11:R L. f>EAfU.MAN Burdette Law l)cpu1y Director Muin A ,cnut.: Sm11h, Suitt· 107 #.B3 Tort!-. Branch Nonh lknd. W/\ 98045 Ci\'il Di\ision Tel. (206) 235-504~ ll.S. Dcparlm\!111 or .lu:-tu.:i: K..:II) Burd..:th·•,1 Hurddtcl.H\\ .01g P.O. Ho.\ I •I() Hc11_1amm l·nmklin \1atio11 Wn~hington. DC 20044-0146

AlJTHORIZf.l> Rf.PRESENTA Tl VI:: ATTORr\EV Of RECORD FOR Of THE SECRETARY OF If EALTH RESPON0E~T: A~0 lllll\1A!\ SERVICES: George R. Grimes - l),911a~p19nt>d by (,~orgdt ------ ~ G•m1c1 · S14 14 ~h.': 1024 02 06 l(\ M 28 O'.> 00' (DR (iEORGF REED GRIMES. MD. MPII f>irc1.:1or. Di, ision of Injury Trial Auorncy Compcn!-ation Programs f'o11s 13ranch Health Sy~tcms Bureau Civil Division I kallh R~:-.ourcc., an<l Scrvic..::- lJ.S. Dcparlml'nt of Just ict Admini1-,tratim1 P.O. Rox 146 I 1. , . Dep;1rtme111 of I lea Ith Benjamin franklin Stali<)n and I luma11 Services Washington, DC 20044-0146 5600 Fi~hcr.s lane, 08W-25A ld: (202) 305-1748 Roch ilk. MD 20857 mitchd I.jonl's(,1. u.sll<~i .gov

Case-law data current through December 31, 2025. Source: CourtListener bulk data.