Koch v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0272V
UNPUBLISHED
ANGELIQUE RENEE KOCH, Chief Special Master Corcoran
Petitioner, Filed: February 2, 2022
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.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On March 11, 2020, Angelique Renee Koch 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 influenza (“flu”) vaccine received on January 7,
2019. Petition at 1; Stipulation, filed February 2, 2022, at ¶¶ 2-4. Petitioner further alleges
the vaccine was administered in the United States, she experienced the residual effects
of the 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
¶¶ 2, 19-20; 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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 February 2, 2022, 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 $75,000.00 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 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 mtniteb ~tates Qeourt of jfeberal QC[aims
OFFICE OF SPECIAL MASTERS
ANGELIQUE RENEE KOCH,
Petitioner,
Case No. 20-272V (ECF)
V. CHIEF SPECIAL MASTER
CORCORAN
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
I. Angelique Renee Koch, 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 January 7, 2019.
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-2l(a)(l), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $75,000.00 in the fonn 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-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.
I 0. 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.
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l l. 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-l 5(a) and (d), and subject to the
conditions of 42 U.S.C. § 300aa- l 5(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, the flu vaccination administered on January 7, 2019, as
alleged by petitioner in a petition for vaccine compensation filed on or about March 11, 2020, in
the United States Court of Federal Claims as petition No. 20-272V.
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.
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15. If the 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 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.
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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Respectfully submitted,
PETITIONER:
IQ RENE'E KOCH
ATTORNEY OF RECORD FOR AUTHORIED REPRESENTATIVE
~~
OF IBE ATTORNEY GENERAL:
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f~,:i!/1,
Co~~el
Muller Brazil, LLP
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
715 Twining Road, Suite 208 U.S. Department of Justice
Dresher, PA 19025 P.O. Box 146
leigh@muJlerbrazil.com Benjamin Franklin Station
(215) 885-1655 Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTONEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
~~\:J.v2fu
D& ~ I D,?1/Sc-, AJ?~~,i,
CDR GEORGE REED GRJMES, MD, M
~w~LJ?~
MARK K. HELLIE
Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch, Civil Division
Health Systems Bureau U.S. Department of Justice
Health Resources and P.O. Box 146
Services Administration Benjamin Franklin Station
U.S. Department of Health and Washington, DC 20044-0146
Human Services mark.hellie@usdoj.gov
5600 Fishers Lane, 08N 146B (202) 616-4208
Rockville, MD 20857
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