Robinson 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. 20-0400V
    UNPUBLISHED
    LILLIAN ROBINSON,                                           Chief Special Master Corcoran
    Petitioner,                            Filed: September 8, 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)
    Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
    Katherine Esposito, U.S. Department of Justice, Washington, DC, for Respondent.
    DECISION ON JOINT STIPULATION 1
    On April 7, 2020, Lillian Robinson 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 left shoulder injury resulting from
    the adverse effects of an influenza vaccination . . . received on November 26, 2018.
    Petition at 1; Stipulation, filed at September 7, 2021, ¶¶ 1-2, 4. Petitioner further alleges
    that she sustained her shoulder injury within the time period set forth in the Table and that
    she experienced residual effects of this injury for more than six months. Petition at ¶¶ 4,
    6, 8, 15; Stipulation at ¶ 4. Respondent denies that Petitioner sustained a SIRVA Table
    injury; denies that the flu vaccine caused Petitioner’s alleged shoulder injuries, or any
    other injury; and denies that her current condition is a sequela of a vaccine-related 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    Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 September 7, 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 lump sum of $52,000.00 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
    OocuSlgn Envelope ID: A2EBAAD4-6FF5-4B3A-8118-5048C7EAE040
    IN THE UNITED STATES COURT OF FEDERAL CLAIMS
    OFFICE OF SPECIAL MASTERS
    *************************************
    LILLIAN ROBINSON,                                *
    *
    Petitioner,             *             No. 20-400V
    *             Chief Special Master Corcoran
    v.                                               *
    *
    SECRETARY OF HEALTH AND                          *
    HUMAN SERVICES,                                  *
    *
    Respondent.             *
    *************************************
    STIPULATION
    The parties hereby stipulate to the following matters:
    1.      Petitioner, Lillian Robinson, 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 contained in the Vaccine Injury Table (the "Table"), 
    42 C.F.R. § 100.3
     (a).
    2.      Petitioner received a flu vaccine in her left arm on November 26, 2018. She also
    received a pneumococcal polysaccharide vaccine in her left arm at the same appointment, which
    is not included on the Table.
    3.      These vaccines were administered within the United States.
    4.      Petitioner alleges that she sustained a shoulder injury related to vaccine
    administration ("SIRVA") within the time period set forth in the Table. She further alleges that
    she has experienced residual effects of this injury for more than six months.
    DocuS!gn Envelope ID: A2EBAAD4-6FF5-4B3A·8118-5048C7EAE04D
    5.       Petitioner represents that there has been no prior award or settlement ofa civil
    action for damages on her behalf as a result of her condition.
    6.       Respondent denies that petitioner sustained a SIR.VA Table injury; denies that the
    flu vaccine caused petitioner's alleged shoulder injuries, or any other injury; and denies that her
    current condition is a sequelae of a vaccine-related 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 lwnp sum of $52,500.00 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-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.
    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
    2
    DocuSign Envelope ID: A2EBMO4-6FF5-4B3A·6116-5046C7EAE04O
    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, 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-l5(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-l 0 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 vaccine administered on November 26, 2018, as
    alleged by petitioner in a petition for vaccine compensation filed on or about April 7, 2020, in
    the United States Court of Federal Claims as petition No. 20-400V.
    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
    DocuSign Envelope ID: A2EBAA04-6FF5-4B3A-8118-5048C7EAE04O
    15.     If the special master fails to issue a decision in complete confonnity with the
    tenns of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity
    with a decision that is in complete confonnity with the tenns 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 petitioner sustained a SIRVA Table injury; that the
    flu vaccine caused petitioner's alleged shoulder injuries, or any other injury; or that her current
    condition is a sequelae of a vaccine-related 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
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    DocuSign Envelope ID: A2EBMD4-6FF5-4B3A·8118-5048C7EAE040
    Respectfully submitted,
    PETITIONER:
    LILLIAN ROBfNSON
    ATTORNEY OF RECORD FOR                               AUTHORIZED REPRESENTATIVE
    PETITIONER:                                          OF THE ATTORNEY GENERAL:
    EIG    INF
    ~~\J_e~~
    HEATHER L. PEARLMAN
    MULLER BRAZI , LLP                                   Deputy Director
    715 Twinning Road, Suite 208                         Torts Branch
    Dresher, PA 19025                                    Civil Division
    (215) 885-1655                                       U.S. Department of Justice
    leigh@myvaccinelawyer.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:
    't>al,t 'P. Mt.Shi.tr, t:>HS e, MS, A'PR.N, for       l<~G~~
    \>,y ~ L t ' ~
    TAMARA OVERBY                                         KA THERINE C. ESPOSITO
    Acting Director, Division of Injury                   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, 08N 146B                           (202) 305-3774
    Rockville, MD 20857                                   katherine.esposito@usdo j.gov
    Dated: oq     /o-::,,ho1, t
    5
    

Document Info

Docket Number: 20-400

Judges: Brian H. Corcoran

Filed Date: 10/13/2021

Precedential Status: Non-Precedential

Modified Date: 10/13/2021