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

Sn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 4, 2021
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TRACY MCCORMICK, * No. 17-1919V
*
Petitioner, * Special Master Sanders
Vv. **
* Stipulation for Award; Tetanus-
SECRETARY OF HEALTH ** Diphtheria (“Tdap”) Vaccine;
AND HUMAN SERVICES, * Shoulder Injury Related to Vaccine
** Administration (““SIRVA”)
Respondent. **
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Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Althea W. Davis, United States Department of Justice, Washington, DC, for Respondent.
DECISION!
On December 11, 2017, Tracy McCormick (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.” 42 U.S.C. §§ 300aa-10 to -34
(2012); Pet. at 1, ECF No. 1. Petitioner alleged that she sustained a shoulder injury related to
vaccine administration (“SIRVA”), or alternatively, significantly aggravated a pre-existing
condition, resulting from the adverse effects of the tetanus-diphtheria (“Tdap”) vaccination she
received on August 11, 2016. /d.; see also Stip. at 1, ECF No. 57. Petitioner further alleged that
she experienced the residual effects of her injury for more than six months. Stip. at 1.
On November 2, 2021, the parties filed a stipulation in which they state that a decision
should be entered awarding compensation to Petitioner. /d. at 2. Respondent “denies that
[P]etitioner’s alleged left shoulder injury or any other injury or condition was caused or
significantly aggravated by her receipt of the Tdap vaccine[.]” /d. Respondent “further denies that
[P]etitioner sustained a SIRVA Table injury.” /d. Nevertheless, the parties agree to the joint
stipulation, attached hereto as Appendix A. I find the stipulation reasonable and adopt it as the
decision of the Court in awarding damages, on the terms set forth therein.
' This Decision shall be posted on the website of the United States Court of Federal Claims, in accordance
with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended
at 44 U.S.C. § 3501 note (2012)). This means the Decision will be available to anyone with access to
the Internet. As provided by Vaccine Rule 18(b), each party has 14 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).
* National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
The parties stipulate that Petitioner shall receive the following compensation:
A lump sum of $170,000.00 in the form of a check payable to
[P]etitioner. This amount represents compensation for all damages that
would be available under 42 U.S.C. § 300aa-15(a).
Td.
I approve the requested amount for Petitioner’s compensation. Accordingly, an award
should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation. *
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
> Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
TRACY MCCORMICK, )
)
Petitioner, ) No. 17-1919V
) Special Master
Vv. ) Herbrina Sanders
) ECF
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Tracy McCormick, petitioner, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 et seq. (the “Vaccine
Program”). The petition seeks compensation for injuries related to petitioner’s receipt of the
tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine, which vaccine is contained in the
Vaccine Injury Table (the “Table’”’), 42 C.F.R. § 100.3(a).
2. Petitioner received a Tdap vaccination on August 11, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained a left shoulder injury related to vaccine
administration (SIRVA), as the result of her Tdap vaccination; alleges that the vaccine
significantly aggravated a preexisting condition; and further alleges that she suffered the residual
effects of this 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’s alleged left shoulder injury or any other injury or
condition was caused or significantly aggravated by her receipt of the Tdap vaccine, and further
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 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 $170,000.00 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-15(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.
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 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 Tdap vaccination administered on or around August
11, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or about
December 11, 2017, in the United States Court of Federal Claims as petition No. 17-1919V.
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. Ifthe 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 Tdap vaccine caused or significantly
aggravated petitioner’s alleged shoulder injury or any other injury or 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
Respectfully submitted,
PETITIONER:
i ME
TRACY MCCORMICK
ATTORNEY OF RECORD FOR
PETITIONER:
Sy
LEAH V. DURANT, ESQUIRE
Law Offices of Leah V. Durant, PLLC
1717 K Street, N.W., Suite 900
Washington, DC 20006
(202) 775-9200
Ldurant@durantllc.com
AUTHORIZED REPRESENTATIVE OF
THE SECRETARY OF HEALTH AND
HUMAN SERVICES:
Dake Wleshlar, DNSa, ALL ir
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Health Systems Bureau
Health Resources and Services
Administration
U.S. Department of Health
and Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
Dated: 44 lez/20 }
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
HEATHER L. PEARLMAN
Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P. O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
4 Hedin L Peup_—
ALTHEA WALKER DAVIS
Senior Trial Counsel
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 616-0515
Althea.Davis@usdoj.gov