Kueng v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-864V Filed: September 6, 2018 UNPUBLISHED LINDSEY KUENG, Special Processing Unit (SPU); Joint Petitioner, Stipulation on Damages; Tetanus v. Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Injury Related to SECRETARY OF HEALTH AND Vaccine Administration (SIRVA) HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 Dorsey, Chief Special Master: On June 26, 2017, petitioner 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 that she suffered a right shoulder injury related to vaccine administration (“SIRVA”), which was caused by administration of the tetanus, diphtheria, acellular-pertussis (“Tdap'”) vaccine she received on May 21, 2016. Petition at 1; Stipulation, filed September 6, 2018, at ¶¶ 2, 4. Petitioner further alleges that she suffered the residual effects of her injuries for more than six months. Petition at 3; Stipulation at ¶ 4. “Respondent denies that the Tdap vaccine caused petitioner’s alleged right SIRVA, or any other injury, and further denies that petitioner’s current disabilities are sequelae of a vaccine related injury.” Stipulation at ¶ 6. 1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Nevertheless, on September 6, 2018, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation: A lump sum of $80,098.71 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 42 U.S.C. § 300aa-15(a). Id. The undersigned approves the requested amount for petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey 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. 2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS LINDSEY KUENG, Petitioner, v. No. 17-864V ChiefSpecial Master Dorsey SECRETARY OFHEALTH AND ECF-SPU HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: I. Lindsey Kueng ("petitioner") filed a petit�on 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 the tetanus, diphtheria, acellular-pertussis ("Tdap'') vaccine, which vaccine is contained in the Vaccine I11jury Table (the "Table"),42 C.F.R. § 100.3(a). 2. Petitioner received a Tdap vaccine in her right deltoid on or about May 21, 2016. 3. The vaccine was administered within the United States. 4. Petitioner alleges that she suffered a right shoulder injury related to vaccine administration ('�SIRVA"), which was caused by administration of the Tdap vaccine. Petitioner further alleges that she suffered the residual effects of her injuries 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. 1 6. Respondent denies that the Tdap vaccine caused petitioner's alleged right SIRVA, or any other injury, and further denies that petitioner's current disabilities are sequelae ofa 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 saon as ptacticable after an entry ofjudgment reflecting a decision consistent with the ter.ms 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 $80,098. 71 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 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-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 attomey represent that they hav e identified to respondent all known sources of payment for items or servicesforwhich 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 prepaid basis. 2 •, 11. Payment made pursuant to paragraph. 8, and any amounts awarded pursuant to paragraph 9 ofthis 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 attorneys' fees and litigation costs, 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·15(a):ana (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, and assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary ?fHealth and Human Services from any and all actions or causes o� action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind. or natute) that have been brought, could have been brought, or could be timely brought in the United States Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § :lOOaa-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 Tdap vaccine administered on May 21, 2016, as alleged by petitioner in a petitiqn for vaccine compensation filed on June 26, 2017, in the United States Court.of Federal Claims as petition No. 17-864V. 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 United States Court of Federal Claims fails to enter judgment in 3 confonnity with a decision that is in complete confonnity 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 do any act or thin,g 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 ot revise this agreement. 17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human ServiGes that the Tdap vaccine caused petitioner's alleged right SIRV A1 or any gther injury, or that her currertt disabilities are sequelae of her alleged vaccine- . related injury. 18. All rights and obligations of petitigner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. I END OF STIPULATION I 4 Respectfully submitted, PETITIONER:. ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: LEAH V. DURANT, ESQ. CATHARINE E. REEVES 1717 K Street, NW, Suite 900 Deputy Director Washington, DC 20006 Torts Branch Tel: (202) 775-9200 Civil Division U.S. Department of Justice P. 0. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR THE SECRETARY OF HEALTH AND RESPONDENT: HUMAN SERVICES: M AJa:a NARAY:rM.D. . Director Senior Trial Attorney Division of Injury Compensation Programs Torts Branch Healthcare Systems Bureau Civil Division Health Resources and Services Administration U.S. Department of Justice U.S. Department of Health and Human Services P. 0. Box 146 5600 Fishers Lane Benjamin Franklin Station Parklawn Building, Stop 08N146B Washington, DC 20044-0146 Rockville, MD 20857 Tel: (202) 616-4099 DATE: "I!< I le 5