In the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1609V
(not to be published)
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*
TRACY GOODSPEED, :
* Filed: March 24, 2021
Petitioner, *
*
*
V. * Decision by Stipulation; Damages;
* Influenza (“Flu”) Vaccine; Shoulder
SECRETARY OF HEALTH AND : injury Related to Vaccine Administration
HUMAN SERVICES, » (SIRVA”).
*
Respondent. *
*
*
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Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner
Debra Begley, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON JOINT STIPULATION!
On December 5, 2016, Tracy Goodspeed (“Petitioner”) filed a petition, seeking
compensation under the National Vaccine Injury Compensation Program (“the Vaccine
Program’).” Pet., ECF No. 1. Petitioner alleges she sustained a left shoulder injury related to
vaccine administration (“SIRVA”) as a result of the influenza (“flu”) vaccination she received on
January 16, 2014. See Stipulation J 2, 4, dated March 23, 2021 (ECF No. 56); see also Amended
Petition.
' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the Decision will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen
days within which to request redaction “of any information furnished by that party: (1) that is a trade secret
or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files
or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). Otherwise, the Decision in its present form will be available. Jd.
* The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
Respondent denies “that petitioner sustained a SIRVA Table injury; denies that the flu
vaccine caused her alleged shoulder injury or any other injury or condition; denies that her alleged
shoulder injury persisted for at least six months; and denies that her current condition is a sequalae
of a vaccine-related injury.” See Stipulation { 6. Nonetheless, both parties, while maintaining
their above-stated positions, agreed in a stipulation filed March 23, 2021 that the issues before
them can be settled and that a decision should be entered awarding Petitioner compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth
therein.
The stipulation awards:
a lump sum of $45,000.00 in the form of a check payable to petitioner.
Stipulation { 8. This award represents compensation for all damages that would be available under
42 U.S.C. § 300aa-15(a).
I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
of the Court is directed to enter judgment herewith.?
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice
renouncing their right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
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TRACY GOODSPEED, *
*
Petitioner, *« No. 16-1609V
* Special Master Oler
V. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
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STIPULATION
The parties hereby stipulate to the following matters:
l. 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, filed on December 5, 2016, seeks compensation for left shoulder injuries allegedly
related to petitioner’s receipt of an influenza (“flu”) vaccine. An amended petition, filed on
March 19, 2018, further seeks compensation for a Vaccine Table injury of shoulder injury related
to vaccine administration (“SIRVA”).! 42 C.F.R. § 100.3 (a).
2. Petitioner received a flu immunization on January 16, 2014.
3. The vaccine was administered within the United States.
4, Petitioner alleges that she sustained a left shoulder injury that was caused-in-fact
by the flu vaccine, and a left-sided SIRVA injury within the time period set forth in the Table.
' The amended petition added a claim for a Table SIRVA, an injury first described on a Vaccine Injury Table that
became effective on March 17, 2017. See 42 C.F.R. § 100.3(a)(XIV), (c)(10). However, SIRVA was not a Table
injury when petitioner filed her petition on December 5, 2016, and the March 17, 2017 Table does not apply to this
case.
She further alleges that she has experienced 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 on her behalf as a result of her condition.
6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the
flu vaccine caused her alleged shoulder injury or any other injury or condition; denies that her
alleged shoulder injury persisted for at least six months; 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-21(a)(1), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $45,000.00 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-1 5(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)(1), 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 compensation to be provided pursuant to
this Stipulation is not for any items or services 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.
Il. Payments 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-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 unreimbursable 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-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 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 a flu vaccination administered on January 16, 2014, as
alleged by petitioner in a petition for vaccine compensation filed on or about December 5, 2016,
and an amended petition filed on or about March 19, 2018, in the United States Court of Federal
Claims as petition No. 16-1609V.
14, If petitioner should die prior to entry of judgment, 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 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 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 petitioner sustained a SIRVA Table injury; that the
flu vaccine caused her alleged shoulder injury or any other injury or condition; that her alleged
shoulder injury persisted for at least six months; or that her current condition is a sequelae of a
vaccine-related 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
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Respectfully submitted,
TRAGY GOODSPEED
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
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RICHARD GAGE HEATHER L. PEARLMAN
Richard Gage P.C. Acting Deputy Director
1815 Pebrican Avenue Tors Branch
P.O. Box 1223 Civil Division
Cheyenne, WY 82003-1223 U.S. Department of Jusiice
(307)443-8864 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;
Delia A 4hkeon Seofee
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TAMARA OVERBY DERRA A. FILTEAU BEGLEY
Acting Director Senior Trial Attorney
Division of Injury Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
Health Resources and Services Adtninisuation U.S. Deparitmeni of Justice
U.S. Department of Health and Human P.O. Box 146
Services Washington, DC 20044-0146
5600 Fishers Lane (202) 616-4181
Mail Stop 08N146B Debra Begley@usdoj.gov
Rockville, MD 20857
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