Schneider v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-456V
Filed: March 26, 2018
UNPUBLISHED
GARY SCHNEIDER,
Special Processing Unit (SPU); Joint
Petitioner, Stipulation on Damages; Influenza
v. (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
SECRETARY OF HEALTH AND (SIRVA)
HUMAN SERVICES,
Respondent.
Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On March 30, 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”) resulting from an influenza (“flu”) vaccination administered on
October 1, 2015. Petition at 1-5; Stipulation, filed March 23, 2018, at ¶¶ 1, 4. Petitioner
further alleges that the vaccine was administered within the United States, that he has
experienced residual effects of this injury for more than six months, and that there has
been no prior award or settlement of a civil action for damages on his behalf as a result
of his condition. Petition at 3-4; Stipulation at ¶¶ 3-5. “Respondent denies that
petitioner’s alleged SIRVA, or any other injury, was caused-in-fact by his flu
vaccination.” Stipulation at ¶ 6. .1
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Because this unpublished decision contains a reasoned explanation for the action in this case, the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.
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 March 23, 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 $45,000.00 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 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.
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IN TIIE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
*************************************
GARY SCHNEIDER, •
•
Petitioner, • No.17-456V
• CHIEF SPECIAL MASTER
v. • NORA BETH DORSEY
•
SECRETARV OF flEALTfl AND *
HUMAN SERVICES, *
Respondent.
'*
*************************************
STIPULATION
The parties hereby stipulate to the following matters:
I. 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 ofan influenza
("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R.
§ l00.3 (a).
2. Petitioner received a flu immunization in his left arm on October I, 2015.
3. This vaccine was administered within-the United States.
4. Petitioner alleges that he developed a shoulder injury related to vaccine
administration ("SIRVA") that was caused-in-fuct by a flu vaccine and that he has experienced
rcsidu~I 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 fur damages on his behalf as a result of his condition.
6. Respondent denies that petitioner's alleged SIRVA, or any other injury, was
caused-in~fact by his flu vaccination.
7. Maintaining their above-slated 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 con:sistent
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$45,000.00 in the fottn of a check payable to petitioner, This amount ·
represents compensation for all damages that would be available under42 U.S.C.
§ 300aa-15(a).
9. As soon as practicable after the ~ntry ofjudgment 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.
I 0. Petitioner and his aitomey represent thnt compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primnrUy liable
under 42 U.S.C. § 300an- 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 poli~ies, 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 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, 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 of42 U.S.C, § 300aa-15(g) and (h).
13, In return for the payments described 'in paragraphs 8 and 91 petitioner, in his
individual capacity and on beha[f of his heirs, executors, administrators, successors or assigns,
does forever irrevocably and un~onditionally 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,judgmcnts, claims, damages, loss of seivices, expenses and all demands
of whatever kind or nature) tbot have been brought, could have been brought, or could be timely
brought in the Court of Federal Claims, under the National Vaccine lnjury Compensation
Program, 42 U.S.C. § 300aa-10 et seq,, on account of, 01· 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 I, 2015, as
alleged by petitioner in a petition for vaccine compensation filed on or about March 30,2017, in
the United States Court ofFedera1 Claims as petition No. 17456V.
14, If petitioner should die prior to entry of judgment, this agreement shall be
voidab!e upon proper notice to the Court on behalf of either or both of the parties.
I 5. If the special ryiaster fails to issue a decision in complete confonnity with the
terms of th.ls Stipulation or if the Court of Federal Claims fails to en1er ju.dgment in conformity
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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
anQ damages claimed under the National Childhood Vaccine lnjury Act of l 986, 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 ano/or
amount of damages, and further, that a change ir{the nature oft he injury or condit~on 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's alleged SIRVA, or any other condition,
was caused-in~fact by his flu vaccination.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner's heirs, executors, administ:rntors. successors, and/or assigns.
END OF STIPULATION
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Res pectfully submitted,
PETill~Nl-~,
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ATTORNEY OF Rf.CORD FOR AUfHORlZED MPRESENTAT(VE
P£Tffi0NER: OF E ATfORNEY CL'OCRAL:
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\,.f_N_S~~,:::---; ~ , L__
Mi!gUo, ChfiSIO~"I' & Toole, PA Dq,iryOirectol'
160$ Main S.tnxt, Suite 710 Torts 8r.lDCII
&lr.isota, FL 34216 CMI DiYi.sfon
(94l) 952·57.42 U.S. 1)¢{Xlrtment ofJtJStice
l'.O.Bm 146
Henj:unin Frc111klin SUtion
Wa:sl,ington, r.>C 2004+-014{>
ATTORNEY OF RF.CORD FOR
RK">PO-,,..,'1)F...W:
Director Trial Attorney
Division oflnjury Compensation Prorv11ms TortS Br:mcli
Hca_lthc;ire System.'> Bu.ruu Civil Divi$ion
U.S. Deportment ofHealth l!$. Otpartment oiJustic.e
5{J()() Fi-.hcr.;. Lane: P.O. Ilo.x 146
I'arkl:!.wn Buitdinr,. Mail Stop 08N 146B Oenjatnin Franklin &utioa
Rockville, l\.ID 20857 Wasfi rn,eton. DC 20044-0146
(202) 616-4 lSI
Dated: 3 r/ /'1 I/ !&
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