Kilgrow v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-218V
UNPUBLISHED
JENNIFER KILGROW, Chief Special Master Corcoran
Petitioner, Filed: December 16, 2021
v.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages; Influenza
HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA)
Glen Howard Sturtevant, Jr., Rawls Law Group (Richmond), Richmond, VA, for
Petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On February 27, 2020, Jennifer Kilgrow 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 Table Injury – Shoulder Injury
Related to Vaccine Administration (“SIRVA”) – as a result of her December 18, 2018
influneza (“flu”) vaccination. Petition at 1; Stipulation, filed at December 14, 2021, ¶¶ 1-2,
4. Petitioner further alleges the vaccine was administered within the United States, that
she suffered the residual effects of her injury for more than six months, and that there has
been no prior award or settlement of a civil action on her behalf as a result of her injury.
Stipulation at ¶¶ 3-5; see Petition at ¶¶ 2, 25-27. “Respondent denies that [P]etitioner
sustained a Table SIRVA within the Table timeframe, and denies that the flu vaccine in
fact caused her alleged shoulder injury and residual effects, or any other injury.”
Stipulation at ¶ 6.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Nevertheless, on December 14, 2021, 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 $82,500.00 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 Section 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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
JENNIFER KILGROW, )
)
Petitioner, )
) No. 20-218V (ECF)
V. ) Chief Special Master Corcoran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
___________________ )
STIPULATION
The parties hereby stipulate to the following matters:
1. Jennifer Kilgrow ("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 sustained following
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).
2. Petitioner received a flu vaccine on December 18, 2018.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained the first symptom or manifestation of onset of
a left Shoulder Injury Related to Vaccine Administration ("SIRVA") within the time period set
forth in the Table. Petitioner further alleges that she experienced the residual effects of her
SIRVA for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil
action for damages as a result of her condition.
6. Respondent denies that petitioner sustained a Table SIRVA within the Table
timeframe, and denies that the flu vaccine in fact caused her alleged shoulder injury and residual
effects, 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)(l), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $82,500.00 in the form of a check payable to petitioner,
Jennifer Kilgrow, which 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. § 300aa-2l(a)(I), 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
State health benefits programs (other than Title XIX of the Social Security Act, 42 U.S.C. § 1396et seq.), or by entities that provide health services on a pre-paid basis.
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11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa- l 5(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, 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 Secretary of
Health and Human Services and the United States of America 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 unsuspected personal injuries to, or death of,
petitioner resulting from, or alleged to have resulted from , the flu vaccine administered on
December 18, 2018, as alleged by petitioner in a petition for vaccine compensation filed on or
about February 27, 2020, in the United States Court of Federal Claims as petition No. 20-218V.
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
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with a decision that is in complete conformity with the tenns 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 ofliability
and damages claimed under the National 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 of
America or the Secretary of Health and Human Services that petitioner's alleged left shoulder
injury and residual effects, or any other injury, were caused by the flu vaccine.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner's heirs, successors and/or assigns.
END OF STIPULATION
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Respectfully submitted,
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
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HEATHER L. PEARLMAN
Rawls Law Group, P.C. Deputy Director
211 Rocketts Ways Torts Branch, Civil Division
Suite 100 U.S. Department of Justice
Richmond, VA 23231 P.O. Box 146
(804) 622-0675 Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRET ARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
v~ e- ~"-4&n, ~.
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TAMARA OVERBY VORIS E. JOHNSON, JR.
Acting Director, Division of Injury Senior Trial Attorney
Compensation Programs (DICP) Torts Branch
Health Systems Bureau Civil Division
Health Resources and U.S. Department of Justice
Services Administration P.O. Box 146
U.S. Department of Health Benjamin Franklin Station
and Human Services Washington, DC 20044-0146
5600 Fishers Lane, 08N146B Tel.: (202) 616-4136
Rockville, MD 20857 Email: voris.johnson@usdoj.gov
Dated: -.:l2( 10".2Q21 • I ~7.,,/
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