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Strom v. Secretary of Health and Human Services, 15-875V. (2018)

Court: United States Court of Federal Claims Number: infdco20180831a33 Visitors: 6
Filed: Aug. 02, 2018
Latest Update: Aug. 02, 2018
Summary: DECISION AWARDING DAMAGES 1 LAURA D. MILLMAN , Special Master . On August 13, 2015, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa-10-34 (2012), alleging that influenza ("flu") vaccine administered October 17, 2014 caused her multiple left shoulder injuries whose onset was on or about October 17, 2014. These injuries are adhesive capsulitis of the left shoulder, complex regional pain syndrome type 1, supraspinatus, infraspinatus, subscapular
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DECISION AWARDING DAMAGES1

On August 13, 2015, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that influenza ("flu") vaccine administered October 17, 2014 caused her multiple left shoulder injuries whose onset was on or about October 17, 2014. These injuries are adhesive capsulitis of the left shoulder, complex regional pain syndrome type 1, supraspinatus, infraspinatus, subscapularis tendinosis, and subacromial subdeltoid bursitis. Petitioner further alleges that she experienced the residual effects of these injuries for more than six months.

On August 2, 2018, the parties filed the attached stipulation in which they agreed to settle this case and described the settlement terms. Respondent denies that flu vaccine caused petitioner to suffer adhesive capsulitis of the left shoulder, complex regional pain syndrome type 1, supraspinatus, infraspinatus, subscapularis tendinosis, and subacromial subdeltoid bursitis or any other injury. Nonetheless, the parties agreed to resolve this case informally.

The undersigned finds the terms of the stipulation to be reasonable, hereby adopts the parties' said stipulation, attached hereto, and awards compensation in the amount and on the terms set forth therein. Pursuant to the stipulation, the undersigned awards the following vaccine compensation payment:

A lump sum payment of $100,000.00 in the form of a check made payable to petitioner, Sheryl Strom. This amount represents compensation for all elements of damage available under 42 U.S.C. § 300aa-15(a).

In the absence of a motion for review filed pursuant to RCFC Appendix B, the undersigned directs the Clerk of Court to enter judgment herewith.2

IT IS SO ORDERED.

STIPULATION

The parties hereby stipulate to the following matters:

1. 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 petitioners receipt of trivalent influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. §100.3(a).

2. Petitioner received the flu vaccine on or about October 17, 2014.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she suffered multiple left shoulder injuries, including "adhesive capsulitis of the left shoulder, complex regional pain syndrome type 1, supraspinatus, infraspinatus, subscapularis tendinosis, and subacromial subdeltoid bursitis," as a consequence of the flu immunization she received on or about October 17, 2014, and further alleges that she suffered the residual effects of these injuries 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.

6. Respondent denies that the flu vaccine caused petitioner's alleged left shoulder injuries, including "adhesive capsulitis of the left shoulder, complex regional pain syndrome type 1, supraspinatus, infraspinatus, subscapularis tendinosis, and subacromial subdeltoid bursitis," or any other injury, and further denies that her 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 $100,000.00, which amount represents compensation for all elements of damages available to petitioner under 42 U.S.C. § 300aa-15(a), including actual and projected unreimbursable vaccine-related expenses, actual and projected pain and suffering, and lost wages, in the form of a check payable to petitioner.

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.

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 attorney's 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 flu vaccination administered on or about October 17, 2014, as alleged by petitioner in a petition for vaccine compensation filed on or about August 13, 2015, in the United States Court of Federal Claims as petition No. 15-875V.

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 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.

I7. 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 multiple alleged left shoulder injuries, or any other injury or any of her current disabilities.

18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

Respectfully submitted, PETITIONER: _________________________ SHERYL STROM ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: _________________________ ______________________________ MAXMILLIAN J. MULLER, ESQ. CATHERINE E. REEVES MULLER BRAZIL, LLP Deputy Director 115 Twining Road, Suite 208 Torts Branch Dresher, PA 19025 Civil Division Tel: (215) 885-1655 U. S. Department of Justice P. O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR THE SECRETARY OF HEALTH AND RESPONDENT: HUMAN SERVICES: ____________________________ ___________________________ NARAYAN NAIR, M.D. GLENN A. MACLEOD Director, Division of Injury Senior Trial Counsel Compensation Programs Torts Branch, Civil Division Healthcare Systems Bureau U.S. Department of Justice Health Resources and Services Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, D.C. 20044-0146 5600 Fishers Lane Tel: (202) 616-4122 Parklawn Building, Stop-08N146B Rockville, MD 20857 Dated; 8/2/18

FootNotes


1. Because this unpublished decision contains a reasoned explanation for the special master's action in this case, the special master intends to post this unpublished decision 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). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the public unless they contain trade secrets or commercial or financial information that is privileged and confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact such information prior to the document's disclosure. If the special master, upon review, agrees that the identified material fits within the banned categories listed above, the special master shall redact such material from public access.
2. Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly, filing a notice renouncing the right to seek review.
Source:  Leagle

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