MacOn v. Secretary of Health and Human Services

     In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 20-232V
                                          UNPUBLISHED


    LISA MACON,                                                 Chief Special Master Corcoran

                         Petitioner,                            Filed: February 9, 2022
    v.
                                                                Special Processing Unit (SPU); Joint
    SECRETARY OF HEALTH AND                                     Stipulation on Damages; Influenza
    HUMAN SERVICES,                                             (Flu) Vaccine; Shoulder Injury
                                                                Related to Vaccine Administration
                         Respondent.                            (SIRVA)


Mark Theodore Sadaka, Law Offices of Sadaka Associates, LLC, Englewood, NJ, for
Petitioner.

Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.


                                DECISION ON JOINT STIPULATION 1

        On February 28, 2020, Lisa Macon 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 a shoulder injury related to vaccine
administration (“SIRVA”) caused by an influenza (“flu”) vaccine administered on October
25, 2017. Petition at 1; Stipulation, filed at February 8, 2022, ¶¶ 1, 2. Petitioner further
alleges that the vaccine was administered within the United States, that she suffered a
left shoulder SIRVA and injuries that were either caused-in-fact or significantly aggravated
by the flu vaccine, and that there has been no prior award or settlement of a civil action
for damages on her behalf as a result of her condition. Petition at 1, 4-5; Stipulation at ¶¶
3-5. Respondent denies that the flu vaccine caused Petitioner to suffer a left shoulder
injury, or any other injury, and denies that Petitioner sustained a SIRVA Table injury.”
Stipulation at ¶ 6.
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   Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
       Nevertheless, on February 8, 2022, 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 $35,000.00 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




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.

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

                                              )
LISA MACON,                                   )
                                              )
               Petitioner,                    )
                                              )      No. 20-232V
       v.                                     )      Chief Special Master Corcoran
                                              )      ECF
SECRETARY OF HEALTH AND                       )
HUMAN SERVICES,                               )
                                              )
               Respondent.                    )


                                         STIPULATION

       The parties hereby stipulate to the following matters:

        I. Lisa Macon, 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 injuries allegedly related to petitioner's receipt of an

influenza ("flu") vaccine, which is a vaccine contained in the Vaccine Injury Table (the "Table"),

42 C.F.R. § 100.3 (a).

       2. Petitioner received the flu vaccine on October 25, 2017.

       3. The vaccination was administered within the United States.

       4. Petitioner alleges that she suffered from a left shoulder injury related to vaccination

administration ("SIRVA"), adhesive capsulitis of the shoulder, left mild subclinical carpal tunnel

syndrome, subacromial bursitis of the left shoulder and subacromial impingement of the left

shoulder that were either "caused-in-fact" by, or significantly aggravated by the flu vaccine.

       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 the flu vaccine caused petitioner to suffer a left shoulder

injury, or any other injury, and denies that petitioner sustained a SIRVA Table 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 tenns 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 $35,000.00 in the fonn 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-2l(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.




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        11 . Payment made pursuant to paragraph 8 of this Stipulation 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 unreimbursed 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, the flu vaccination administered on October 25, 2017, as

alleged by petitioner in a petition for vaccine compensation filed on or about February 28, 2020,

in the United States Court of Federal Claims as petition No. 20-232V.

        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.




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       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 the flu vaccine caused petitioner to have SIRVA, a

left shoulder injury, or any other injury or her current condition.

        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,

     PETITIONER:


     L~'jno@J
     ATTORNEY OF RECORD                 AUTHORIZED REPRESENTATIVE
     FOR PETITIONER:                    OF THE ATTORNEY GENERAL:


                                        Jlg~\12~
     MARKT. SADAKA                        HEATHER L. PEARLMAN
     Sadaka Associates LLC                Deputy Director
     155 North Dean Street                Torts Branch
     4th Floor                            Civil Division
     Englewood, NJ 07631                  U.S. Department of Justice
                                          P.O. Box 146
                                          Benjamin Franklin Station
                                          Washington, DC 20044-0146

     AUTHORIZED REPRESENTATIVE            ATTORNEY OF RECORD FOR
     OF THE SECRET ARY OF HEALTH          RESPONDENT:
     AND HUMAN SERVICES:
                                            ~~w.~
z;;alA, ~ ,     z;¥/sc., JnS, 4/JM, #"'      ~ ~ Lf?~
     CDR GEORGE REED GRIMES, MD, MP1f     AMANDA PASCIUTO
     Director, Division of Injury         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.S. Department of Health            Benjamin Franklin Station
      and Human Services                  Washington, DC 20044-0146
     5600 Fishers Lane, 08N146B           Tel: (202) 616-4847
     Rockville, MD 20857                  Email: amanda.y.pasciuto@usdoj.gov



     Dated:   OU09 fwu-z__


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