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

In the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1120V
(not to be published)
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*
DEREK SAUNDERS, :
* Filed: March 17, 2021
Petitioner, *
*
*
V. * Decision by Stipulation; Damages;
* Influenza (“Flu”) Vaccine; Shoulder
SECRETARY OF HEALTH AND : Injury Related to Vaccine Administration
HUMAN SERVICES, » (SIRVA”).
*
Respondent. *
*
*
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Ronald Homer, Conway, Homer, P.C., Boston, MA, for Petitioner
Adriana Teitel, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON JOINT STIPULATION!
On August 21, 2017, Derek Saunders (“Petitioner”) filed a petition, seeking compensation
under the National Vaccine Injury Compensation Program (“the Vaccine Program”).” Pet., ECF
No. 1. Petitioner alleges he suffered from a shoulder injury related to vaccine administration
(“SIRVA”) as a result of the influenza (“flu”) vaccination he received on October 14, 2015. See
Stipulation J 2, 4, dated March 16, 2021 (ECE No. 57); see also Petition.
Respondent denies “that petitioner sustained a SIRVA Table injury; denies that the vaccine
' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the Decision will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen
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). Otherwise, the Decision in its present form will be available. Jd.
* The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
caused petitioner’s alleged shoulder injury, or any other injury; and denies that his current
condition is a sequela of a vaccine-related injury.” See Stipulation { 6. Nonetheless, both parties,
while maintaining their above-stated positions, agreed in a stipulation filed March 16, 2021 that
the issues before them can be settled and that a decision should be entered awarding Petitioner
compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth
therein.
The stipulation awards:
a lump sum of $35,000.00 in the form of a check payable to petitioner.
Stipulation { 8. This award represents compensation for all damages that would be available under
42 U.S.C. § 300aa-15(a).
I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
of the Court is directed to enter judgment herewith.?
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice
renouncing their right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
DEREK SAUNDERS,
Petitioner,
No. 17-1120V
v. Special Master Oler
ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1, Petitioner Derek Saunders (“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 an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine
Injury Table (the “Table”’), 42 C.F.R. § 100.3(a).
2. Petitioner received his flu vaccine on October 14, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he suffered a shoulder injury related to vaccine administration
(“SIRVA”) within the time period set forth in the Table and that his alleged shoulder condition is
actually caused by the vaccine. Petitioner further alleges that he experienced the residual effects
of his injury 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 his condition.
6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the
vaccine caused petitioner’s alleged shoulder injury, or any other injury; and denies that his
current condition is a sequela 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 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 $35,000.00 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 his attomey represent that they have identified to respondent all
known sources of payment for items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-15(g), including 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 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 unreimbursable 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 his
individual capacity, and on behalf of his 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 flu vaccination administered on October 14, 2015, as
alleged by petitioner in his petition for vaccine compensation filed on August 21, 2017, in the
United States Court of Federal Claims as petition No. 17-1120V.
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 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 influenza vaccination caused petitioner to
suffer a shoulder injury or any other 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
—™ SRR
Respectfully submitted,
ed, Sal
DEREK SAUNDERS
ATTORNEY OF RECORD FOR
PETITIONER:
cane) . HOMER
Conway Homer, P.C.
16 Shawmut Street
Boston, MA 02116
Tel: (617) 695-1990
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
CAPT Dabs Wahler, PWV\So, for
TAMARA OVERBY
Acting Director, Division of
Injury Compensation Programs
Healthcare Systems Bureau
U.S. Department of Health
and Human Services
5600 Fishers Lane
Parklawn Building, Mail Stop 08-N146B
Rockville, MD 20857
Dated: 8 Né/2oz-}
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
phe deibure Pew IN
HEATHER L. PEARLMAN
Acting Deputy Director
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
Daren] etd
bu eS? 2 iA —
ADRIANA TEITEL
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 616-3677
adriana.teitel@usdoj.gov