Dzurick 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. 19-1336V
    UNPUBLISHED
    KRISTI DZURICK,                                             Chief Special Master Corcoran
    Petitioner,                            Filed: October 7, 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)
    Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.
    Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
    DECISION ON JOINT STIPULATION1
    On August 30, 2019, Kristi Dzurick 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 related to vaccine
    administration (“SIRVA”) as a result of an October 6, 2018 influenza (“flu”) vaccine.
    Petition at 1; Stipulation, filed October 6, 2021, at ¶¶ 2-4. Petitioner further alleges the
    vaccine was administered in the United States, she experienced the residual effects of
    her injury for more than six months, and there has been no prior award or settlement of a
    civil action for damages on her behalf as a result of her alleged injuries. Petition at ¶¶ 5,
    14, 16-17; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained the onset
    of a SIRVA Table injury within the Table timeframe and further denies that the flu vaccine
    caused petitioner’s alleged left shoulder injury, any other injury, or her current condition.”
    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    Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 October 6, 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 $50,000.00 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
    ]n tbe 'ijl{ntteb ~tates Qtourt of jfeberal Qtlatms
    OFFICE OF SPECIAL MASTERS
    K.RlSTI DZURICK,
    Petitioner,
    Case No. 19-1336V (ECF)
    V.                                                        CHIEF SPECIAL MASTER
    CORCORAN
    SECRETARY OF HEALTH
    AND HUMAN SERVICES,
    Respondent.
    STIPULATION
    The parties hereby stipulate to the following matters:
    1.      Kristi Dzurick, 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 the influenza ("flu") vaccine, which is a vaccine contained in the
    Vaccine Injury Table (the "Table"), 
    42 C.F.R. § 100.3
    (a).
    2.      Petitioner received the vaccine on October 6, 2018.
    3.      The vaccination was administered within the United States.
    4.       Petitioner alleges that she sustained a left shoulder injury related to vaccine
    administration ("SIRVA") within the Table time period after receiving the flu vaccine,
    and alleges that she experienced the 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 on her behalf as a result of her alleged injuries.
    6.     Respondent denies that petitioner sustained the onset of a SIRVA Table
    injury within the Table timeframe and further denies that the flu vaccine caused
    petitioner's alleged left shoulder injury, any other injury, or her current condition.
    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)(l), the Secretary of Health
    and Human Services will issue the following vaccine compensation payment:
    A lump sum of $50,000.00 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 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)(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
    2
    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 of this Stipulation and any amounts
    awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with
    42 U.S.C. § 300aa-l 5(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
    3
    resulted from, the flu vaccination administered on October 6, 2018, as alleged by
    petitioner in a petition for vaccine compensation filed on or about August 30, 2019, in the
    United States Court of Federal Claims as petition No. l 9-l 336V.
    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 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 the flu vaccine caused petitioner's
    alleged left shoulder injury or any other injury or her current condition.
    4
    18.    All rights and obligations of petitioner hereunder shall apply equally to
    petitioner's heirs, executors, administrators, successors, and/or assigns.
    END OF STIPULATION
    5
    Respectfully submitted,
    PETITIONER:
    ATTORNEY OF RECORD FOR                    AUTHORIED REPRESENTATIVE
    PETITIONER:                               OF THE ATTORNEY GENERAL:
    JE~
    ._,Jd I Af'L..A\d   0, C ~
    HEATHER L. PEARLMAN
    Counsel for Petitioner                  Deputy Director
    Jeffrey S. Pop & Associates              To1ts Branch, Civil Division
    9150 Wilshire Blvd., Suite 241           U.S. Department of Justice
    Beverly Hills, CA 90212                  P.O. Box 146
    jpop@poplawyer.com                       Benjamin Franklin Station
    (310) 273-5462                           Washington, DC 20044-0146
    AUTHORIZED REPRESENTATIVE                ATTONEY OF RECORD FOR
    OF THE SECRETARY OF HEALTH               RESPONDENT:
    AND HUMAN SERVICES:
    Dai/,,~, z:;,,,¼S'c,, A/JK,11/,cf""
    TAMARA OVERBY
    I-{~       ~tt:t f).e_~
    MARK. HEU JR
    Acting Director, Division of Injury       Trial Attorney
    Compensation Programs                   Torts Branch, Civil Division
    Health Systems Bureau                     U.S. Department of Justice
    Health Resomces and                       P.O. Box 146
    Services Administration                 Benjamin Franklin Station
    U.S. Depa1tment of Health and             Washington, DC 20044-0146
    Human Services                           mark.hellie@usdoj.gov
    5600 Fishers Lane, 08N 146B               (202) 616-4208
    Rockville, MD 20857
    Dated:   l4 /os/'Zo'Z-, I
    6
    

Document Info

Docket Number: 19-1336

Judges: Brian H. Corcoran

Filed Date: 11/9/2021

Precedential Status: Non-Precedential

Modified Date: 11/10/2021