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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0541V
UNPUBLISHED
GEORGE GARRISON, Chief Special Master Corcoran
Petitioner, Filed: May 19, 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)
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
On April 12, 2019, George Garrison 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 he sustained a shoulder injury related to vaccine
administration (SIRVA) as a result of an influenza (“flu”) vaccination received on October
12, 2016. Petition at 1; Stipulation, filed at May 18, 2021, ¶¶ 2, 4. Petitioner further alleges
that he experienced the residual effects of this condition for more than six months. Petition
at 1; Stipulation at ¶ 4. “Respondent denies that petitioner sustained a SIRVA Table injury
and denies that the flu immunization is the cause of petitioner’s alleged shoulder injury,
or any other injury or condition.” Stipulation at ¶ 6.
Nevertheless, on May 18, 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.
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
A lump sum of $36,000.00 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.
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J
INT.BE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
GEORGE GARRISON,
Petitioner,
v. No. 19-0S41V
Chief Special Master Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Peritimer filed a petition for vaccine compensaoon under the Nati>nal Vaccine Injury
Compemation Program, 42 U.S.C.§300aa-101o 34 (the "Vaccine Program"). The petition
seeks compensation for injuriDs allegedly related to petitioner's rece.,t of the in&onm («flu")
vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. §
100.3(a).
2. Petitioner received the flu vacciaatbl on or about October 12, 2016.
3. The vaccine was adminmtered with.in the United States.
4. Petitioner alleges that he sustained a shoulder injury related to vaccine admirustration
('-SIRVA") within the time period set forth in the Table, or in the alternative, and that his alleged
shoulder injury was caused by the vaccine. He further alleges that he experienced the resilual
effects of this condition for more than six months.
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S. Petitioner represents that there bas been no prior award or settlement of a civil action
for damages as a result of his conditi>n.
6. Respondent denies that petitmer sustained a SIRVA Table injury and denies that the
flu immunization is the cause of petitiooer•s alleged shoulder iqjury, or any other i\jury or
condition.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the
__ _ _issues between them shall be settled and that a decsion should be entered awarding the
. - . ·-
compensation described in paragraph 8 of tbis Stipulation.
8. As soon as practicable after an entry ofjudgmem reflecting a decii;ion consistent with
the terms of this Stipulation, and after petitioner bas filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Heakh and Human Services wiD issue
the foDowiJg vaccine compensati>n payment:
A lump sum of $36,000.00 in the form of a check payable to petitioner. Tim
amount represents eompcnsation for all damages that would be available under 42
U.S.C. §300aa-15(a).
9. As soon as practicable after the entry ofjudgment on entitlement in tbs 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 tbs
petition.
10. Petitioner and his attorney represent that they have identmed to respondent all
known sources of payment for items or services for which the Program s not primarily liable
under 42 U.S.C. § 300aa-1S(g), including State compensaaon programs, insurance policies,
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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 sem:es on a pre-paid basis.
11. Payment made pursuant to paragraph 8 ofthis Stipulation, and any amount awarded
pursuant to paragraph 9, will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the
availability of suffkient statutory funds.
12. The parties and their attorneys further agree and stipulate that, except for any award
for attorney's fees and Jitiption 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-1S(a) and (d), and subject to the cooditioDs of 42 U.S.C.
§ 300aa-1S(g) and (h).
13. ln return for the payment described in paragraph 8, and any amount awarded
pursuant to paragraph 9, petitioner, in ha individual capacity, and on behalf of his heirs,
executors, admilmtrators, successors and/or assigm, does forever irrevocably and
unconditionally release, acquit and dscbarge the United States and the SecretmyofHealth and
Human Services from any and all actiom or causes of action (including agreements, judgments,
claims, damages, Joss 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 Fe~~
Clabm, under the Nawoal Vaccine Injury Compematm 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
1D1Suspected personal iqjuries to or death of pettimer resulting from, or alleged to have resulted
from, the flu vaccine admhmtered on or about October 12, 2016, as alleged by petiti:mer in a
petition for vaccine compensation filed on or about April 12, 2019, in the United States Court of
Federal Claims as petition No. 19-0S41V.
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14. If petitimer should die prior to entry ofjudgment, tbs agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
IS. If the special master fails to issue a decism in complete conformity with the terms
of tbs Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a
decision that is in complete conformity with the tenm ofthk Stipu)ation, then the parties'
settlement and tlm Stipu)ation shall be voidable at the sole dwcretbn of either party.
16. This Stipulation expresses a full and complete negotiated settlement of liability and
damages claimed under the National CbiJdhood Vaccine Injury Act of 1986, as amended, except
as otherwme noted in paragraph 9 above. There • absolutely no agreement on the part of the
parties hereto to make any payment or 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 tlm
Stipulation may reflect a compromise of the parties' respective positims as to liability and/or
amount of damages and tbrther, that a change in the nature of the injury or condition or in the
item, of compensation sought, is not grounds to modify or revise this agreement.
. 17. This Sq,ulation shall not becomtrued asanadmssion by the United States or the
Secretary of Health and Human Services that the t1u vaccine caused petitioner's aJJcged shoulder
iqjury or any other injury or condn>n.
18. All rights and obligations of petitioner hereunder shall apply equally to petitmr's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully submitted,
PETITIONER:
ATTORNEY OF RECORD FOR AUTHORIZED REPRSENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
~~
Muller Urnzil
\ ,&le ~~(?e-v-J-.N'--
HEATHER L. PEARLMAN
Acting Deputy Director
715 Twining Road. Suite 208 Torts Branch
Dresher. PA 19025 Civil Division
Telephone: (215) 885-1655 U.S. Department of Justice
E-ma ii: paul(~11my,·acc inc lawyer.com P.O. Rox 146
Bc1tjamin Franklin Stution
Washington, DC 20044-0146
AUTHORIZED REPRESENTATl\'E ATTOR'.'IEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
CA/JrD& JJiuvlk/ D#Sc-1
TAMARA OVERl3Y
ell, (a~~L~c(JU#--
c AMILLE M. COLLETT
Acting Director. Division of li1imy Trial Attorney
Compcns.ition Programs Torts Branch
Healthcare Systems Bureau Ci, ii Division
Health Resources and Services U.S. Department of Justice
Administration P.O. Box 146
U.S. Oepartmcnt of Hcnhh Benjamin Franklin Station
and Iluman Services Washington. DC 20044-0146
5600 Fishers Lane, 08N 146B Tel: (202) 616-4098
Rockville. MD 20857 E-mail: Camille.M.CollcH([ttusdoj.gov
DATE: osh8J1oi:1
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