Lander v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0153V
UNPUBLISHED
ELAINE H. LANDER, Chief Special Master Corcoran
Petitioner, Filed: November 25, 2019
v.
SECRETARY OF HEALTH AND Special Processing Unit (SPU); Joint
HUMAN SERVICES, Stipulation on Damages; Influenza
(Flu) Vaccine; Shoulder Injury
Respondent. Related to Vaccine Administration
(SIRVA)
Howard Scott Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On January 31, 2018, Elaine Lander 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
November 9, 2015. Petition at 1; Stipulation, filed November 25, 2019, at ¶¶ 2-4.
Petitioner further alleges that the vaccine was administered in the United States, she
suffered the residual effects of her injury for more than six months, and that there has
been no prior award or settlement of a civil action for damages as a result of her
condition. Petition at 1,4; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner
sustained a SIRVA Table injury and denies that petitioner’s alleged SIRVA and its
residual effects were caused-in-fact by her flu vaccine. Respondent further denies that
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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 ruling 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.
2National 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).
the flu vaccine caused petitioner any other injury or her current condition. ” Stipulation at
¶ 6.
Nevertheless, on November 25, 2019, 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 $45,000.00 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 § 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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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
ELAINE LANDER,
Petitioner,
V.
No. 18-153V
Chief Special Master Corcoran (SPU)
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner Elaine Lander ("petitioner") filed a petition for vaccine compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l Oto 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 her flu immunization on November 9, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a shoulder injury related to vaccine administration
("SIRVA") within the time period set forth in the Table, that her alleged shoulder condition is
actually caused by the vaccine, and further alleges that she experienced the residual effects of her
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 her condition.
6. Respondent denies that petitioner sustained a SIRVA Table injury and denies that
petitioner's alleged SIRVA and its residual effects were caused-in-fact by her flu vaccine.
Respondent further denies that the flu vaccine caused petitioner 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 $45,000.00 in the form of a check payable to
petitioner. This amount represents compensation for all damages,
including pain and suffering, lost earnings, and past unreimbursable
expenses 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-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.
10. Petitioner and her attorney 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-l 5(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.
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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-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,
docs 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-l0 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 November 9, 2015, as
alleged by petitioner in her petition for vaccine compensation filed on January 31, 2018, in the
United States Court of Federal Claims as petition No. 18-153V.
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 tenns
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 pa11ies'
settlement and this Stipulation shall be voidable at the sole discretion of either pm1y.
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
pa11ies 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 liabil ity 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 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
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Respectfully submitted,
PETITIONER:
ATTORNIYOFRECORDFOR AUTHORIZED REPRESENTATIVE
J;;;:7f7__~_L•._----
PETITXONER:
~~-
HOWARD S. GOLD ~ REEVES
Oold Law Firm, LLC Deputy Director
83 Walnut Street, Suite 150 Torts Bninch
Wellesley Hill~ MA 0248 l Civil Division
(336) 333-2244 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTOllNEYOFRECORDFOR
OF TIU: SECRETARV OF HEALTH RESPONDENT!
AND llUMA.N SERVICES:
/.W~
. ~ iill:ttt--,
TAMARA OVERBY DARYlR.WJSHARP
Aeting Director, Division of Senior Trial Attorney
Injury Compensation Progran1s Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Deportment of Justice
and Humtm Scr\liccs P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Buildjng, Mail Stop 08-N146B Washington, DC 20044-0146
Rockville, MD 20857 (202) 616--4357
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