Stuart v. Secretary of Health and Human Services

CORRECTED

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1644V

CINDY STUART, Chief Special Master Corcoran Petitioner, Filed: December 4, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Tyler King, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On November 23, 2020, Cindy Stuart 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 developed a left shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination received on January 6, 2020. Petition at 1; Stipulation, filed at November 28, 2023 at ¶¶ 1-2.

Petitioner further alleges that the vaccination was administered within the United States, her left shoulder injuries and sequelae lasted more than six months, and neither she, nor any other party, has ever filed any action or received any compensation in the form of an award or settlement for her vaccine-related injuries. 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 injury, and further denies that the flu vaccine caused [P]etitioner to suffer from any other injury or her current condition.” Stipulation at ¶ 6.

Nevertheless, on November 28, 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: A lump sum of $65,000.00 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

Vinesign Document ID: 3EEF9ED8-D364-4458-9CDA-F30746AE5916

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

CJNDY STUART, No. 20-1644V Petitioner, Chief Special Master Corcoran ECF v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: I. Petitioner, Cindy Stuart, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l Oto -34 (the "Vaccine Program").

The petition seeks compensation for injuries allegedly related to petitioner's receipt of the influenza vaccine, which is contained in the Vaccine Injury Table (the ''Table"), 42 C.F.R. § I00.3(a).

2. Petitioner received the influenza vaccine on January 6, 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, or in the alternative, that her alleged shoulder injury was caused by the vaccine. Petitioner further alleges that she experienced the residual effects of this condition for more than six months.

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

The signed document can be validated at https://app.vinesign.comNerify 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu vaccine caused petitioner's alleged shoulder injury, and further denies that the flu vaccine caused petitioner to suffer from any other injury or her current condition.

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 ofjudgment 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 following vaccine compensation payment: A lump sum of $65,000.00 in the form of a check payable to petitioner. This amount represents 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-2 l(a)(l ), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incuJTed in proceeding upon this petition.

I0. Petitioner and her attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or servict!s for which the Program is not primarily liable under 42 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-l 5(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 unreimbursed expenses, the money provide<l 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-15(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 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 all demands of whatever kin<l 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. § 300 aa-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 influenza vaccination administered on January 6, 2020, as alleged in a petition for vaccine compensation filed on or about November 23, 2020, in the United States Court of Federal Claims as petition No. 20-l 644V.

14. If petitioner should die prior to entry ofjudgment, 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 conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity 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.

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 injury or any other injury or her current disability, 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 I I I I I

Respectfully submitted, PETITIONER:

~UM\ CINDY STUART

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

c-4k AMY SENERTH ~~1£E~~LAJ\rr - - Muller Brazil, LLP Deputy Director Twining Rd. Torts Branch Suite 208 Civil Division Dresher, PA 19025 U.S. Department of Justice Tel: (215) 885-1655 P.O. Box 146 [email protected] Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE AITORNEY OF RECORD FOR OFTHESECRETARYOFHEALTH RESPONDENT: AND HUMAN SERVICES: Dlglblly slgnl'd by Henry Hen ry P• P. Mtmlllan ·SS 0 1 16 16 by Mcmillan -S5 ~~~~ 23.1 • :04' 56 CDR GEORGE REED GRIMES, MD, MPH Director, Division of Injury Trial Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Deparonent of Justice Health Resources and Services P.O. Box l46 Administration Benjamin Franklin Station U.S. Department of Health Washington, DC 20044-0146 and Human Services Tel: (202) 305-0730 5600 Fishers Lane, 08W-25A [email protected] Rockville, MD 20857

Vlneslgn -----------~-- -- --- - - - - ~ Verification Complete __ __ __ _ •• ...... • _ -· • -- -- J11et.Jocu111,:,11lh,1:. UcenoH1c,alty11e11fie<l. _ - ____ _:_- __ _. --~- ---- ·- . . . ··---· ... :.. -·- ___.J... ___ --• . ......:-_ ___:_ __ _

Document Stetus ..,, Signed & Verif,erl Docu,n,nt Name Stipulation - StJart Sende-rName MuUer Br.azil Document Key 3E EF'IEDB-D364-445S-9COA·Fl0746A~ 5916

Recipient 1 IPAddret.$ signature Cindy Stuart 99.120.172.74 clndy.stuart23@yahoo.(Om 1806) 407~090 G'*V<lv'\\ Order 1

Document History AnMcy oate•nme Recipient AnMty Detalls

, 112212023 18:30 urc Cindy Stuart Signed by Cindy Stuart (1806) 407-0090) lllac:lltfl•I• lllock WOplyv110>l7•><l>taQXMk•AAv2pdyX'4<JT\111&0ZiO• Document Completed Dowm.,,,t Mt:1h 33S08E e~ 0 39c2gco, OOF3SCA8g 1ACE 28E20200337SS6F0523182872( 15608900 EMMIE♦ Till'lNtlrnp 11121/2023 18:30 UTC

11/22/2023 18:28 UTC Cindy Stuart Viewed by Cindy Stuart ((806) 407--0090) Document Vi~wed

11122,.202318:26 urc Cindy Stuart Sent out via email to c,noyStuart ([email protected]) Document Sent

1112212023 tS:26 urc Cindy Stuart Sent out via teict to Cindy Stuart ((8061407-C090l Document Sent

Ii t 1122/2023 18:26 UTC Created by Muller Srazll (medicalrecords@r11y,acclnelaw,,er.com) Document Created