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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1905V
UNPUBLISHED
KAREN KYGER, Chief Special Master Corcoran
Petitioner, Filed: June 24, 2020
v.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages;
HUMAN SERVICES, Pneumococcal Conjugate Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Danielle Strait, Maglio Christopher & Toale, PA, Seattle, WA, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On December 11, 2018, Karen Kyger 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 and morphea
profunda, as a consequence of the Prevnar-13 vaccine she received on or about
September 20, 2016. Petition at 1; Stipulation, issued on June 24, 2020, ¶¶ 4, 6.
Petitioner further alleges that she suffered the residual effects of this injury for more
than six months. Petition at 4; Stipulation at ¶ 4. “Respondent denies that the Prevnar-
13 vaccine caused petitioner’s alleged left shoulder injury and morphea profunda, or
any other injury and further denies that her alleged current disabilities are a sequela of a
vaccine-related injury.” Stipulation at ¶ 6.
Nevertheless, on June 24, 2020, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. I find the stipulation
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
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 $47,250.00, 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
____________________________________
)
KAREN KYGER, )
)
Petitioner, ) No. 18-1905V (ECF)
) Chief Special Master Corcoran
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Karen Kyger, 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
pneumococcal (“Prevnar-13”) vaccine, which vaccine is contained in the Vaccine Injury Table
(the “Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received a Prevnar-13 vaccine on or about September 20, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a left shoulder injury and morphea profunda, as a
consequence of the Prevnar-13 immunization she received on or about September 20, 2016, and
further alleges that she suffered 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 condition.
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6. Respondent denies that the Prevnar-13 vaccine caused petitioner’s alleged left shoulder
injury and morphea profunda, or any other injury and further denies that her alleged current
disabilities are a sequela 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 $47,250.00 in the form of a check payable to petitioner, representing
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 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 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 prepaid basis.
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11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded
pursuant to paragraph 9 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, and 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
United States 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, the Prevnar-13 vaccination administered on or about September 20,
2016, as alleged by petitioner in a petition for vaccine compensation filed on or about December
11, 2018, in the United States Court of Federal Claims as petition No. 18-1905V.
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 terms of
this Stipulation or if the United States 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 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 Prevnar-13 vaccine caused petitioner’s alleged
left shoulder injury or morphea profunda or any other injury or any of her alleged current
disabilities.
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:
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
~ ~ (._
A. STRAIT, ESQ. mNE E. REEVES
Maglio Christopher & Toale, P.A. Deputy Director
1325 Fourth Avenue Torts Branch
Suite 1730 Civil Division
Seattle, WA 98101 U.S. Department of Justice
Tel: (888) 952-5242 P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR
~
THE SECRETARY OF HEALTH AND
HUMAN SERVICES:
~ (_
TAMARA OVERBY
Acting Director, Division of
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Trial Attorney
L,' - - -
Injury Compensation Programs (DICP) Torts Branch, Civil Division
Healthcare Systems Bureau U.S. Department of Justice
U.S. Department of Health P.O. Box 146
and Human Services Benjamin Franklin Station
5600 Fishers Lane Washington, D.C. 20044-0146
Parklawn Building, Stop-08N146B Tel: (202) 616-3644
Rockville, MD 20857
Dated: V/0/~
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