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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0376V
UNPUBLISHED
CHRISTA JEAN BINGHAM, Chief Special Master Corcoran
Petitioner, Filed: December 19, 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)
Jane Morrow, Otorowski Morrow & Golden, PLLC Bainbridge Island, WA, for petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
On March 9, 2018, Christa Jean Bingham 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). Petition at 1; Stipulation, filed December 19, 2019, at ¶
4. Petitioner further alleges that she suffered the residual effects of this injury for more
than six months. Stipulation at ¶ 4. “Respondent denies that petitioner sustained a
SIRVA Table injury; denies that the vaccine caused petitioner’s alleged shoulder
injuries, or any other injury; and denies that her current condition is a sequelae of a
vaccine-related injury ” Stipulation at ¶ 6.
Nevertheless, on December 19, 2019, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. I find the
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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).
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 $50,000.00 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.
2
./
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
CHRISTA JEAN BINGHAM, )
)
Petitioner, )
) No. 18-376V
V. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
_________________ Respondent. )
)
STJPULA TION
The parties hereby stipulate to the following matters:
1. Christa Jean Bingham, 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 vaccine is contained in the Vaccine Injury Table (the
"Table"), 42 C.F.R. § 100.3(a).
2. Petitioner received her flu vaccine on November 5, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained a Shoulder Injury Related to Vaccine
Administration (SIRVA) within the time period set forth in the Table, or in the alternative, that
her alleged shoulder injuries were caused by the vaccine. She further alleges that she
experienced the residual effects of her alleged injuries for more than six months after vaccine
administration.
1
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 vaccine injury.
6. Respondent denies that petitioner sustained a SIRVA Table injury;_denies that the
vaccine caused petitioner's alleged shoulder injuries, or any other injury; 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-2 l (a)(l ), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $50,000.00 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-l5(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)(I), and an application, the parties will submit to further proceedings before
the special master to award reasonable attorney's 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-15(g), including State compensation programs, insurance policies, Federal or
2
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.
l l . 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 attorney's fees and litigation costs, 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 S(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- l 0 et seq., on account of, or in any way growing out of, any and all
known or wumown, suspected or unsuspected personal injuries to or death of petitioner resulting
from, or alleged to have resulted from, her flu vaccination administered on November 5, 2016, as
alleged by petitioner in a petition for vaccine compensation filed on or about March 9, 2018, in
the United States Court of Federal Claims as petition No. 18-376V.
3
I O • I
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 confonnity 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 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 SIRVA
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
I
I
4
Respectfully submitted,
PETITIONER: ~
~
CHS --
TA JEAN BINGHAM
ATIORNEY OF RECORD FOR AUTHORIZED REPRESEJ\"TATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
A M OW,ESQ.
OROWSKI MORROW & Acting Deputy Director
GOLDEN, PLLC Torts Branch
298 Winslow Way W. Civil Division
Bainbridge Island, WA 981 IO U.S. Department of Justice
Tel: (206) 842-1000 P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORJZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH AND RESPONDENT:
HUMAN SERVICES:
TAMARA OVERBY CLA~
Acting Director, Division of Injury Senior Trial Attorney
Compensntion Programs Torts Branch
Healthcare Systems Bureau Civil Division
Health Resources and Services Administration U.S. Department of Justice
U.S. Department of Health and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Frnnklin Station
Park.lawn Building, Mail Stop 08Nl46B Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-4138
Dated: / 2 - Iq - / CJ
5