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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0234V
UNPUBLISHED
CYNTHIA CHISM, Chief Special Master Corcoran
Petitioner, Filed: November 10, 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.
Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION ON JOINT STIPULATION1
On March 2, 2020, Cynthia Chism 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”), a defined Table Injury, caused by the influenza (“flu”) vaccine
on October 8, 2018. Petition at 1, ¶¶ 2, 17; Stipulation at ¶¶ 1-2, 4. Petitioner further
alleges that she received the vaccine in the United States, that she suffered the residual
effects of her SIRVA for more than six months, and that neither she nor any other person
has filed a civil action or received compensation for her SIRVA. Petition at ¶¶ 17-18;
Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner sustained a Table SIRVA within
the Table timeframe, and denies that the flu vaccine in fact caused her alleged shoulder
injury and residual effects, 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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Nevertheless, on November 10, 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 $30,000.00 in
compensation as follows:
1. A lump sum payment of $27,630.00 in the form of a check payable to
Petitioner; and
2. A lump sum payment of $2,370.00, representing reimbursement of a
Medicaid lien for services rendered to Petitioner by the State of Tennessee,
in the form of a check payable jointly to Petitioner and BCBST, and mailed
to:
BCBST
1 Cameron Hill Circle, Ste. 0008
Chattanooga, Tennessee 37402-0008
ID Number: M13950797.
Stipulation at ¶ 8. Petitioner agrees to endorse the check to BCBST for satisfaction of
the Medicaid lien. 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
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
CYNTHIA CHISM, )
)
Petitioner, )
) No. 20-234V (ECF)
v. ) Chief Special Master Corcoran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
1. Cynthia Chism ("petitioner") filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 ("Vaccine
Program"). The petition seeks compensation for injuries allegedly sustained following
petitioner's receipt of an influenza ("flu") vaccine, which vaccine is contained in the Vaccine
Injury Table ("Table"), 42 C.F.R. § 100.3(a).
2. Petitioner received the flu vaccine on October 8, 2018. Petitioner received a
tetanus-diphtheria-acellular pertussis ("Tdap") vaccine in her left arm on the same date.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained the first symptom or manifestation of onset of
a right Shoulder Injury Related to Vaccine Administration ("SIRVA") within the time period set
forth in the Table. Petitioner further alleges that she experienced the residual effects of her
SIRVA 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.
6. Respondent denies that petitioner sustained a Table SIRVA within the Table
timeframe, and denies that the flu vaccine in fact caused her alleged shoulder injury and residual
effects, 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 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 payments:
A. A lump sum of $27,630.00 in the form of a check payable to petitioner; and
B. A lump sum of $2,370.00, 1 representing reimbursement of a Medicaid lien
for services rendered to petitioner by the State of Tennessee, in the form of
a check payable jointly to petitioner and BCBST:
BCBST
I Cameron Hill Circle, Ste. 0008
Chattanooga, Tennessee 37402-0008
ID Number: M13950797
Petitioner agrees to endorse this check to BCBST.
These amounts represent compensation for all damages that would be available under 42
1
This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or
cause of action that the State of Tennessee may have against any individual as a result of any
Medicaid payments that the Tennessee Program has made to or on behalf of Cynthia Chism as a
result of her alleged vaccine-related injury suffered on or about October 8, 2018, under Title XIX
of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h).
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U.S.C. § 300aa-15(a).
9. As soon as practicable after the entry 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-2l(a)(l), and an application, the parties will submit to further proceedings
before the chief special master to award reasonable attorney 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 Vaccine 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 prepaid 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 attorney 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 Secretary of
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Health and Human Services and the United States of America 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 and Tdap vaccines
administered on October 8, 2018, as alleged by petitioner in a petition for vaccine compensation
filed on or about March 2, 2020, in the United States Court of Federal Claims as petition No. 20-
234V.
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 chief 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 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
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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 of
America or the Secretary of Health and Human Services that petitioner's alleged right shoulder
injury and residual effects, or any other injury, were caused by the flu vaccine.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner's heirs, successors, and/or assigns.
END OF STTPULATION
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Respectfully submitted,
PETITIONER:
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
~Muller a::;:LP
715 Twining Road, Suite 208
'--4-1 0 ~\J.2< ~
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
Dresher, PA 19025 U.S. Department of Justice
(215) 885-1655 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:
i ? & ~ , Ds«Sc.-, A ~ .u-2-
TAMARAOVERBY {) BENJAMIN P. WARDER
Acting Director, Division of Injury Trial Attorney
Compensation Programs (DICP) Torts Branch
Health Systems Bureau Civil Division
Health Resources and U.S. Department of Justice
Services 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 Telephone: (202) 532-5464
Rockville, MD 20857 Email: Benjamin.P. Warder@usdoj.gov
Dated: 1I {oft~/
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