Judges: Thomas L. Gowen
Filed: Oct. 05, 2020
Latest Update: Oct. 05, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: September 9, 2020 * * * * * * * * * * * * * UNPUBLISHED MARY GRAMMER, * * No. 17-593V Petitioner, * v. * Special Master Gowen * SECRETARY OF HEALTH * Stipulation; Influenza (Flu); AND HUMAN SERVICES, * Shoulder Injury Related to * Flu Administration (SIRVA). Respondent. * * * * * * * * * * * * * * Isaiah R. Kalinowski, Maglio Christopher and Toale, PA, Washington, DC, for petitioner. Darryl R. Wishard, United States De
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: September 9, 2020 * * * * * * * * * * * * * UNPUBLISHED MARY GRAMMER, * * No. 17-593V Petitioner, * v. * Special Master Gowen * SECRETARY OF HEALTH * Stipulation; Influenza (Flu); AND HUMAN SERVICES, * Shoulder Injury Related to * Flu Administration (SIRVA). Respondent. * * * * * * * * * * * * * * Isaiah R. Kalinowski, Maglio Christopher and Toale, PA, Washington, DC, for petitioner. Darryl R. Wishard, United States Dep..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: September 9, 2020
* * * * * * * * * * * * * UNPUBLISHED
MARY GRAMMER, *
* No. 17-593V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Stipulation; Influenza (Flu);
AND HUMAN SERVICES, * Shoulder Injury Related to
* Flu Administration (SIRVA).
Respondent. *
* * * * * * * * * * * * *
Isaiah R. Kalinowski, Maglio Christopher and Toale, PA, Washington, DC, for petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for respondent.
DECISION ON STIPULATION1
On May 2, 2017, Mary Grammer (“petitioner”) filed a petition for compensation within
the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). 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).
Petitioner received the flu vaccine on October 28, 2014. The vaccine was administered
within the United States. Petitioner alleges that the flu vaccine caused her to suffer a shoulder
injury related to vaccine administration (SIRVA) and that she experienced the residual effects of
this condition for more than six months.
1
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://www.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. Id. 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.
2
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.
On September 9, 2020, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation (ECF No. 80). Respondent denies that
petitioner sustained a Table SIRVA injury; denies that the vaccine caused or significantly
aggravated petitioner’s alleged injury or any other injury; and, denies that petitioner’s current
disabilities are the result of a vaccine-related injury. Id. 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.
Id. at ¶ 7.
The stipulation awards:
1) A lump sum of $35,000.00 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-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.3
IT IS SO 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).
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
___________________________________
)
MARY GRAMMER, )
)
Petitioner, ) No. 17-593V ECF
)
v. ) Special Master Gowen
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Mary Grammer, 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. § 100.3(a).
2. On October 28, 2014, petitioner received a flu vaccine in the left arm.
3. The vaccine was administered within the United States.
4. Petitioner alleges that, as a result of receiving the vaccine, she suffered the onset of a
left shoulder injury related to vaccine administration (“SIRVA”) within the Table timeframe, or
alternatively, that her vaccine caused her left shoulder injury, and that she experienced symptoms
of the injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
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for damages as a result of her alleged injuries.
6. Respondent denies that petitioner sustained a Table SIRVA injury; denies that the
vaccine caused or significantly aggravated petitioner’s alleged injury or any other injury; and,
denies that petitioner’s current disabilities are the result 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 $35,000.00, 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-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. Section 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 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
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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, 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 unsuspected personal injuries to or death of petitioner resulting from, or
alleged to have resulted from, the flu vaccine administered on October 28, 2014, as alleged by
petitioner in a petition for vaccine compensation filed on or about May 2, 2017, in the United
States Court of Federal Claims as petition No. 17-593V.
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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 petitioner sustained a Table injury, or that the
vaccine either caused or significantly aggravated petitioner’s alleged 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
4
Respectfully submitted,
PETITIONER:
I
I
MARYG
\
'--_,, ATTORNE: OF RECORD FOR AUTHORIZED REPRESENTATIVE
ci3YU
ISAIAH R. KALINOWSKI
Maglio Christopher & Toale, P.A.
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OF THE ATTORNEY GENERAL:
CAIBARINE E. REEVES
Deputy Director
117'3 Pe1111s1rJ,saAia \, e11ac J•fW, Saitit J25 Torts Branch
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~2!~ 5 .w~5 1~1l St ,J\J Civil Division
U.S. Department of Justice
S"';u 111~ P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
I[)~ rZ L.J l/l.NA ,[)
CA/JTD~ ~ I Df11/Se-1 tf~
TAMARA OVERBY
·2-L~&__
DARRYL R. WISHARD
Acting Director, Division of Injury Assistant Director
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 08Nl46B Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-4357
Dated: , , ~/W
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