Burgo v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1691V

JANET BURGO, Chief Special Master Corcoran Petitioner, Filed: December 20, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On November 25, 2020, Janet Burgo 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 left shoulder injuries related to vaccine administration (“SIRVA”) resulting from the influenza (“flu”) vaccination she received on January 11, 2018. Petition at 1; Stipulation, filed at December 19, 2023, ¶¶ 1-2. Petitioner further alleges that the vaccination was administered within the United States, her symptoms lasted for more than six months, and neither she, nor any other party, has ever filed any action or received compensation in the form of award or settlement for her vaccine-related injury. Petition at 1, 3; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner sustained a SIRVA Table injury; denies that the flu vaccine caused [P]etitioner’s alleged shoulder injury; and denies that her current condition is a sequelae of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on December 19, 2023, 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 payment of $25,000.00 in the form of a check payable to Petitioner, Janet Burgo.

2. A lump sum payment of $730.26, representing compensation for satisfaction of a State of Georgia Medicaid lien for services rendered by WellCare, payable jointly to Petitioner and Equian, and mailed to: Equian P.O. Box 182643 Columbus, OH 43218 Tax IDD #: XX-XXXXXXX Equian Event Number: 50201802 Attn: Sheila Slaughter 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 ) JANET BURGO, ) ) ) Petitioner, ) ) No. 20-1691V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. )

STIPULATION The parties hereby stipulate to the following matters: 1. Janet Burgo ("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 an injury allegedly related to petitioner's receipt of the influenza ("flu") vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a).

2. Petitioner received the flu vaccine on January 11, 2018.

3. The vaccine was administered in the United States.

4. Petitioner alleges that as a result ofreceiving the flu vaccine, she suffered a Shoulder Injury Related to Vaccine Administration ("SIRVA") within the Table timeframe. She further alleges that she suffered the residual effects of her alleged injury for more than six months.

5. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of her alleged condition.

6. Respondent denies that petitioner sustained a $IRVA Table injury; denies that the flu vaccine caused petitioner's alleged shoulder injury, 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-2l(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payments: A. A lump sum of $25,000.00, in the form of a check payable to petitioner; and B. A lump sum of $730.26; representing reimbursement of a Medicaid lien for services rendered to petitioner by WellCare, in the form of a check payable jointly to petitioner and Equian: Equian P.O. Box 182643 Columbus, OH 43218 Tax IDD #: XX-XXXXXXX Equian Event Number: 50201802 Attn: Sheila Slaughter Petitioner agrees to endorse this check to the Equian.

This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Georgia may have against any individual as a result of any Medicaid payments WellCare has made to or on behalf of Janet Burgo as a result of her alleged vaccine- related injury suffered on or about January 11, 2018, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h).

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 ofjudgment 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)(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 they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), including 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 entities that provide health services on a pre-paid basis.

11. Payment made pursuant to paragraph 8 of this Stipulation, and any amount awarded pursuant to paragraph 9, 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 unreirnbursable expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-l 5(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 paragraph 8, and any amount awarded pursuant to paragraph 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 vaccine administered on January 11, 2018, as alleged in a Petition filed on November 25, 2020, in the United States Court of Federal Claims as petition No. 20-1691V.

14. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice ofthe 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 United States 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 fu11 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 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 the flu vaccine caused petitioner's alleged shoulder 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

Case 1:20-w-01691-UNJ Document 39 Filed 12/19/23 Page 6 of 7

Respectfully submitted, PETITIONER:

~ - - JANETBURGO ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PET..,.,,,..~~-.ER: OF THE ATTORNEY GENERAL:

~\il_e~ HEATHER L PEARLMAN r Brazil Deputy Director Twinning Road, Suite 2 8 Torts Branch Dresher, PA 19025 Civil Division Telephone: (215) 885-1655 U.S. Department of Justice Email: [email protected] P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: George R. Grimes Oigltally signedbyGeorgeR.

Grimes-S14 -S 14 Date: 2023.12.11 19:38:45 --OS'O0' CDR GEORGE REED GRIMES, M.D., MPH RONALDA E. KOSH Director, Division oflnjury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services u.s_ Department of Justice Administration P.O_ Box 146 U-8. Department of Health Benj amin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08W-25A [email protected] Rockville, MD 20857 (202) 616-4476

Dated: ,~ t,q lw~3