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

Sn the Gunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: December 21, 2020
* * * * * * * * * * * * *
TAMMY COPPING, * UNPUBLISHED
*
Petitioner, * No. 18-1466V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Decision on Stipulation; Influenza
AND HUMAN SERVICES, * (Flu); Shoulder Injury Related to
* Vaccine Administration (SIRVA).
Respondent. *
* * * * * * * * * * * * *
Paul R. Brazil, Muller Brazil LLP, Dresher, PA, for petitioner.
Mark K. Hellie, United States Department of Justice, Washington, DC, for respondent.
DECISION ON STIPULATION!
On September 24, 2018, Tammy Copping (“petitioner”) filed a petition for compensation
within the National Vaccine Injury Compensation Program.” Petition (ECF No. 1). The petition
seeks compensation for injuries allegedly related to petitioner’s receipt of an influenza (flu)
vaccine, which is a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §
100.3(a).
Petitioner received the flu vaccine on September 27, 2017. The vaccine was
administered within the United States. Petitioner alleges that she sustained a right shoulder
injury related to vaccine administration (SIRVA) within the Table time period after receiving the
' Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The Court’s website is at http:/Avww.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion
is posted on the Court’s website, each party has 14 days to file a motion requesting 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). An objecting party must provide the Court with a proposed
redacted version of the opinion. /d. If neither party files a motion for redaction within 14 days, the opinion will
be posted on the Court’s website without any changes. Id.> 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.A. §
300aa.
flu vaccine, and alleges that she experienced the residual effects of this injury for more than six
months.
On December 21, 2020, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation (ECF No. 33). Respondent denies that
petitioner sustained the onset of a Table SIRVA injury within the Table timeframe; that she
suffered any loss of range of motion; and further denies that the flu vaccine caused petitioner’ s
alleged right shoulder injury or any other injury. /d. at [ 6. Maintaining their respective
positions, the parties nevertheless now agree that the issues between them shall be settled and
that a decision should be entered awarding compensation according to the terms of the
stipulation attached hereto as Appendix A. /d. at 7.
The stipulation awards:
1) A lump sum of $42,500.00 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). I adopt the stipulation as the decision of the Court and hereby award
compensation in the amount and on the terms set forth therein. Accordingly, the Clerk of Court
SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.*
IT ISSO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
In the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
TAMMY COPPING,
Petitioner,
Case No. 18-1466V (ECF)
v. CHIEF SPECIAL MASTER
CORCORAN
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Tammy Copping, 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 is a vaccine contained in the
Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).
2. Petitioner received the vaccine on September 27, 2017.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she sustained a right shoulder injury related to
vaccine administration (“SIRVA”) within the Table time period after receiving the flu
vaccine, and alleges that she experienced the residual effects of this 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 alleged injuries.
6. Respondent denies that petitioner sustained the onset of a SIRVA Table
injury within the Table timeframe, that she suffered any loss of range of motion, and
further denies that the flu vaccine caused petitioner’s alleged right shoulder injury or any
other 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 $42,500.00 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 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
2
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. Payment made pursuant to paragraph 8 of this Stipulation 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 unreimbursed 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
3
unsuspected personal injuries to or death of petitioner resulting from, or alleged to have
resulted from, the flu vaccination administered on September 27, 2017, as alleged by
petitioner in a petition for vaccine compensation filed on or about September 24, 2018, in
the United States Court of Federal Claims as petition No. 18-1466V.
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 flu vaccine caused petitioner’s
alleged right shoulder injury 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