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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1120V
UNPUBLISHED
HEATHER HARVARD, Chief Special Master Corcoran
Petitioner, Filed: April 21, 2020
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)
Jeffrey Gordon, Maney & Gordon, P.A., Tampa, FL, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
On July 31, 2018, Heather Harvard 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) after receiving an influenza (“flu”) vaccine on August
10, 2015. Petition at 1; Stipulation, filed April 21, 2020, at ¶¶ 1-2. Petitioner further
alleges she sustained the first symptom or manifestation of onset of a left SIRVA within
the Table time period; experienced the residual effects of this injury for more than six
months; she had no recent history of pain, inflammation, or dysfunction of her left
shoulder prior to her vaccination. Petition at 1; Stipulation at ¶¶ 4. In the Stipulation,
Respondent states that “[t]here is not a preponderance of evidence demonstrating that
petitioner’s SIRVA is due to a factor unrelated to her immunization” and “[a]ccordingly,
petitioner is entitled to compensation for her SIRVA under the terms of the Act.”
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
Stipulation at ¶ 5, 7. However, Respondent “denies that the flu vaccine caused any
other injury, including Complex Regional Pain Syndrome.” Stipulation at ¶ 7.
On April 21, 2020, 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 $109,582.59 in the form of a check payable to Petitioner,
consisting of $105,000.00 for past and future pain and suffering and $4,586.59
for unreimbursed expenses. Stipulation at ¶ 9. 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
)
HEATHER HARVARD, )
)
Petitioner, ) No. 18-1120V ECF
)
V. ) Chief Special Master Corcoran
)
SECRETARY OF HEAL1H )
AND HUMAN SERVICES, )
)
____________ Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Heather Harvard, 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 contained in the Vaccine Injury Table (the "Table"), 42
C.F.R § I00.3(a).
2. On August 10, 2015, petitioner received the flu vaccine in the left arm.
3. The vaccine was administered within the United States.
4. Petitioner sustained the first symptom or manifestation of onset of a left shoulder
injury related to vaccine administration (''SIRVA"), within the Table time period, following
receipt of the flu vaccine, and experienced the residual effects of this injury for more than six
months.
S. There is not a preponderance of evidence demonstrating that petitioner's SIRVA is
due to a factor unrelated to her immuniz.ation.
6. Petitioner represents that there has been no prior award or settlement of a civil
action for damages as a result of her alleged injuries.
7. Accordingly, petitioner is entitled to compensation for her SIRVA under the terms
of the Act Respondent denies that the flu vaccine caused any other injury, including Complex
Regional Pain Syndrome ("CRPS").
8. 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 9 of this Stipulation.
9. As soon as practicable after an entry of judgment reflecting a decision consistent
with the tenns of this Stipulation, and after petitioner has filed an election to receive
compensation pursuant to 42 U.S.C. § 300aa-2l(a)(I), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $109,582.59 (consisting of $105,000.00 for past and future pain
and suffering; and, $4,586.59 for unreimbursed expenses), in the fonn of a check
payable to petitioner.
This amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-l 5(a).
l 0. As soon as practicable after the entry ofjudgment 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. Section 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.
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11. 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 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.
12. Payment made pursuant to paragraph 9 of this Stipulation, and any amounts
awarded pursuant to paragraph 10 of this Stipulation, will be made in accordance with 42 U.S.C.
§ 300aa-1 S(i), subject to the av~ilability of sufficient statutory funds.
13. 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- l 5(a) and (d), and subject to the conditions of 42 U.S.C.
§§ 300aa-15(g) and (h).
14. In return for the payments described in paragraphs 9 and I 0, 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, 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
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unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or
alleged to have resulted from, the vaccine administered on August 1S, 2015, as alleged by
petitioner in a petition for vaccine compensation filed on or about July 31, 2018, in the United
States Court of Federal Claims as petition No. 18-1120V.
15. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
16. If the special master fails to issue a decision in complete confonnity with the terms
of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity with a
decision !flat is in complete confonnity with the terms of this Stipulation, !hen the parties'
settlement and this Stipulation shall be voidable at the sole discretion of either party.
17. 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 10 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 e,cpressly 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
18. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the vaccine either caused or significantly
aggravated petitioner's alleged injury or any other injury; however, petitioner has satisfied the
Table criteria to establish entitlement to compensation for her sm.vA.
4
19. 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,
PETmONER:
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TIIER HARVARD
A'ITORNEYOFRECORDFOR AUfBORlZED REPRESENTATIVE
PETMONER: OF THE A'ITORNEY GENERAL:
~ VESLL_ _
- ~
Maney & Gordon, P.A. Deputy Director
101 E. Kennedy Blvd., Suite 1700 Torts Branch
Tampa, FL 33602 Civil Division
Tel: (813) 221-1366 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OFTHESECRETARYOFHEALTH RESPONDENT: •
AND HUMAN SERVICES:
wtud s~~J',t,
TAMARA OVERBY
°f;1f~ ~
DARRYLR WISHARD
Acting Director, Division of Injury Senior Trial Attorney
Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 08N146B Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-4357
Dated: l.f/u I w
I I
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