Sanderson v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-0407V UNPUBLISHED VERONICA SANDERSON, Chief Special Master Corcoran Petitioner, Filed: June 8, 2021 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On March 18, 2019, Veronica Sanderson 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 alleged that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving the influenza vaccine on October 4, 2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On April 27, 2020, I issued a ruling on entitlement, finding Petitioner entitled to compensation for her SIRVA. On June 8, 2021, Respondent filed a joint stipulation by the 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). parties stipulating that Petitioner should be awarded $160,000.00. Stipulation at ¶ 8. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the stipulation. Pursuant to the terms stated in the attached Stipulation, I award Petitioner a lump sum payment of $160,000.00 in the form of a check payable to Petitioner, Veronica Sanderson. This amount represents compensation for all damages that would be available under Section 15(a). The clerk of the 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. 2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ************************************* VERONICA SANDERSON, * * Petitioner, * No.19-407V * Chief Special Master Corcoran v. * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * ************************************* STIPULATION The parties hereby stipulate to the following matters: 1. 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 March 18, 2019, seeks compensation for injuries allegedly related to petitioner's receipt of an influenza ("flu") vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a). 2. Petitioner received a flu vaccination on October 4, 2016. 3. The vaccine was administered within the United States. 4. Petitioner sustained a left shoulder injury related to vaccine administration ("SIRVA") within the time period set forth in the Table following receipt of the flu vaccination, and petitioner has suffered the residual effects of this condition for more than six months. 5. There is not a preponderance of the evidence demonstrating that petitioner's SIRVA is due to a factor unrelated to the October 4, 2016 flu vaccination. 6. Petitioner represents that there has been no prior award or settlement of a civil action for damages related to her SIRVA injury. 7. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine Act for her SIRVA Table injury. Therefore, 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 payment: A lump sum of $160,000.00, 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-l 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)(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. I 0. 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-l 5(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. 2 11. 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- 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 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-l 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa- l 5(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity and on behalf of petitioner's 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 October 4, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or about March 19, 2019, in the United States Court of Federal Claims as petition No. 19-407V. 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. 3 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 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 the 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. The 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 shoulder injury or any other injury or her current condition; however, petitioner has satisfied the Table criteria to establish entitlement to compensation. 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 I I I 4 Respectfully submitted, ~YITIONER: C'\ IJ.u, Ulc(,u,. VERONICA SANDERSON u {JL\!V A i) >--- EY OF RECORD FOR AUTHORIZED REPRESENTATIVE ER: OF THE ATTORNEY GENERAL: ~~ \4.£ (! cJvv--,...._ HEATHER L. PEARLMAN Conway Homer, P.C. Acting Deputy Director 16 Shawmut Street Torts Branch Boston, MA 02116 Civil Division (617) 695-0880 U .S. Department of Justice 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: ~ ( C, f-)~~(~~\ D~ ~ I z:,p(Sc.-, ~ 1 , , \,A..\ ~ I \ L Y ' ~ TAMARA OVERBY DEBRA A. FILTEAU BEGLEY Acting Director, Division oflnjury Senior Trial Attorney Compensation Programs Torts Branch Healthcare Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08Nl46B (202) 616-4181 Rockville, MD 20857 Debra. Bcgley@usdoj.gov 5