Israelsen v. Secretary of Health and Human Services ( 2021 )


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  •      In the United States Court of Federal Claims
    OFFICE OF SPECIAL MASTERS
    No. 19-1052V
    UNPUBLISHED
    ASHLEY N. ISRAELSEN,                                        Chief Special Master Corcoran
    Petitioner,                            Filed: May 28, 2021
    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)
    Mari Colleen Bush, Mari C. Bush, LLC, Boulder, CO, for petitioner.
    Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
    DECISION ON JOINT STIPULATION 1
    On July 22, 2019, Ashley N. Israelsen 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”) as a result of her February 19, 2018 influneza (“flu”) vaccination.
    Petition at 1; Stipulation, filed at May 25, 2021, ¶¶ 1-2, 4. Petitioner further alleges the
    vaccine was administered within the United States, that she suffered the residual effects
    of her injury for more than six months, and that there has been no prior award or
    settlement of a civil action on her behalf as a result of her injury. Stipulation at ¶¶ 3-5; see
    Petition at 1. “Respondent denies that petitioner sustained a Table SIRVA within the
    timeframe set forth in the Table; and denies that the flu immunization caused or
    significantly aggravated petitioner’s alleged shoulder injury and/or any other 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    1  Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
    (2012).
    Nevertheless, on May 25, 2021, 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. A lump sum payment of $1,065.09, representing compensation for
    satisfaction of a State of Colorado Medicaid lien, payable jointly to
    Petitioner and
    Colorado Department of Health Care Policy and Financing Tort and
    Casualty Recovery Program
    333 W. Hampden Ave., Suite# 425
    Englewood, CO 80110
    Petitioner agrees to endorse this payment to the State; and
    b. A lump sum of $110,000.00 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 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
    THE UNITED STATES COURT OF FEDERAL CLAIMS
    OFFICE OF SPECIAL MASTERS
    ASHLEY N. ISRAELSEN,
    Petitioner,
    V.                                                       No. 19-1052V
    Chief Special Master Brian H. Corcoran
    SECRETARY OF HEALTH AND                                  ECF
    HUMAN SERVICES,
    Respondent.
    STIPULATION
    The parties hereby stipulate to the following matters:
    1. Ashley N. Israelsen ("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 vaccine is contained in the Vaccine Injury Table (the
    "Table"), 
    42 C.F.R. § 100.3
    (a).
    2. Petitioner received a flu vaccine on or about February 19, 2018, in her left deltoid.
    3. The vaccine was administered within the United States.
    4. Petitioner alleges that she sustained a left-sided 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. She further alleges that she experienced
    residual effects of this injury for more than six months.
    5. Petitioner represents that there has been no prior award or settlement of a civil action
    for damages as a result of her condition.
    1
    6. Respondent denies that petitioner sustained a Table SIRVA within the timeframe set
    forth in the Table; and denies that the flu immunization caused or significantly aggravated
    petitioner's alleged shoulder injury and/or any other 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-2l(a)(l), the Secretary of Health and Human Services will issue
    the following vaccine compensation payments:
    a. A lump sum payment ofSl,065.09, representing compensation for satisfaction of
    a State of Colorado Medicaid lien, payable jointly to petitioner and
    Colorado Department of Health Care Policy and Financing
    Tort and Casualty Recovery Program
    333 W. Hampden Ave., Suite# 425
    Englewood, CO 80110.
    Petitioner agrees to endorse this payment to the State; and
    b. A lump sum of$110,000.00 in the form of a check payable to petitioner. This amount
    represents all remaining compensation for all damages that would be available under 42
    U.S.C. § 300aa-15(a) for injuries allegedly related to petitioner's receipt of the flu
    vaccine.
    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.
    2
    10. Petitioner and her attorney represent that they have identified to respondent all
    known sources of payment for items or services for which the Program is not primarily liable
    under 42 U.S.C. § 300aa-l 5(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 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-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 and/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 or
    3
    about February 19, 2018, as alleged by petitioner in a petition for vaccine compensation filed on
    or about July 22, 2019, in the United States Court of Federal Claims as petition No. 19-1052V.
    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 the flu vaccine caused petitioner's alleged shoulder
    injury and/or any other 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
    I
    I
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    Respectfully submitted,
    PETITIONER:
    ~Mf2i~----
    ATTORNEY OF RECORD FOR                   AUTHORIZED REPRESENTATIVE
    PETITIONER:                              OF THE ATTORNEY GENERAL:
    ~L·~                                     ~~~ C?e ~
    MARIC.BUSH                               HEATHER L. PEARLMAN
    MARI C. BUSH, LLC                        Acting Deputy Director
    P.O. Box 2075                            Torts Branch
    Boulder, CO 80306                        Civil Division
    (303) 442-4885                           U.S. Department of Justice
    mcbush@maribush.com                      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:
    CA/JTv~ ~ I v~s~I tY~
    TAMARA OVERBY                            RYAND. PYLES
    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) 616-9847
    Rockville, MD 20857                      ryan.pyles@usdoj.gov
    Dated: C)S   /zs):z_o:z._, I
    5
    

Document Info

Docket Number: 19-1052

Judges: Brian H. Corcoran

Filed Date: 6/28/2021

Precedential Status: Non-Precedential

Modified Date: 6/28/2021