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

Sn the Cnited States Court of Federal Claiung
OFFICE OF SPECIAL MASTERS
Filed: May 7, 2021
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LORETTA SHIRLEY, * UNPUBLISHED
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Petitioner, * No. 17-539V
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v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Decision Based on Stipulation;
AND HUMAN SERVICES, * Influenza (“Flu”) Vaccine; Shoulder
* Injury Related to Vaccine
Respondent. * Administration (““SIRVA”).
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Edward M. Kraus, Law Offices of Chicago Kent, Chicago, IL, for petitioner.
Debra A. Filteau Begley, US Department of Justice, Washington, DC, for respondent.
DECISION BASED ON STIPULATION!
On April 17, 2017, Loretta Shirley (“petitioner”) filed a petition in the National Vaccine
Injury Compensation Program.” Petitioner alleged that as a result of an influenza (“flu”) vaccine
on October 27, 2014, she developed a shoulder injury related to vaccine administration
(“SIRVA”). Petition at Preamble (ECF No. 1).
On May 7, 2021, the parties filed a stipulation recommending an award of compensation
to petitioner. Stipulation (ECF No. 71). Respondent denies that petitioner sustained a SIRVA
Table injury within the Table timeframe; denies that the flu vaccine caused her alleged shoulder
' Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
? The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this Decision
to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa
1
injury, or any other injury or condition; denies that her alleged injury persisted for at least six
months; and denies that her current condition is a sequalae of a vaccine-related injury.
Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The
undersigned finds the stipulation reasonable and adopts it as the decision of the Court in
awarding damages, on the terms set forth therein.
The parties stipulate that petitioner shall receive the following compensation:
(1) A lump sum of $30,000.00 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). Stipulation at { 8.
The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.*
IT IS SO ORDERED.
s/Nora B. Dorsey
Nora B. Dorsey
Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
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LORETTA SHIRLEY, *
*
Petitioner, * No. 17-539V
. Special Master Dorsey
V. .
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, ’
*
Respondent. *
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STIPULATION
The parties hereby stipulate to the following matters:
1. 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, filed on April 17, 2017, seeks compensation for a Vaccine Table injury of shoulder
injury related to vaccine administration (“SIRVA”) following the receipt of an influenza (“flu’’)
vaccine. 42 C.F.R. § 100.3 (a).
2. Petitioner received a flu vaccination on October 27, 2014.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained a left-sided SIRVA injury within the time
period set forth in the Table. She further alleges that she has experienced residual effects of her
alleged 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 condition.
6. Respondent denies that petitioner sustained a SIRVA Table injury within the
Table timeframe; denies that the flu vaccine caused her alleged shoulder injury, or any other
injury or condition; denies that her alleged injury persisted for at least six months; 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 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 $30,000.00 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 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.
11. | Payments 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 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 resulted from a flu vaccination administered on or about October 27,
2014, as alleged by petitioner in a petition for vaccine compensation filed on or about April 17,
2017, in the United States Court of Federal Claims as petition No. 17-539V.
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. Ifthe 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 petitioner sustained a SIRVA Table injury; that the
flu vaccine caused her alleged shoulder injury, or any other injury or condition; that her alleged
injury persisted for at least six months; 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
Respectfully submitted,
PETITIONER:
Korein
LORETTA SHIRLEY ()
ATTORNEY OF RECORD FOR
PETITIONER:
PUL hi
EDWARD KRAUS
Law Offices of Chicago-Kent
College of Law
565 West Adams Street, Suite 600
Chicago, Hlinois
(312)906-5070
Se
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
CALF Dabs Wahler, DN Se, fer
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Healthcare Systems Bureau
Health Resources and Services
Administration
U.S. Department of Health
and Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
Dated: oSlo4 lor,
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
ANE Peon LW
EATHER 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:
Debra A Fe aw
lu Nedstrun Pec. Ii—
DEBRA A. FILTEAU BEGLEY
Senior Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 616-4181
Debra. Begleviqiusdoj gov