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

In the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-690V
(not to be published)
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MARIA TURKSON,
Filed: December 7, 2021
Petitioner,
Vv.
Decision by Stipulation; Damages;
Influenza (“flu”) Vaccine; Shoulder Injury
Related to Vaccine Administration
(“SIRVA”).
SECRETARY OF HEALTH AND
HUMAN SERVICES,
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Respondent. *
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Joseph A. Vuckovich, Maglio, Christopher & Toale, P.A., Washington, DC for Petitioner
Colleen C. Hartley, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON JOINT STIPULATION!
On May 18, 2018, Maria Turkson (“Petitioner”) filed a petition seeking compensation
under the National Vaccine Injury Compensation Program (“the Vaccine Program’”).” Pet., ECF
No. 1. Petitioner alleges that she suffered from a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) as a result of the influenza (“flu”) vaccine she received on October 19,
2015. See Stipulation ¥ 2, 4, dated December 7, 2021 (ECF No. 61); see also Petition.
' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the Decision will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen
days within which to request 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). Otherwise, the Decision in its present form will be available. Jd.
* The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
Respondent denies “that Petitioner sustained a SIRVA Table injury; denies that the vaccine
caused petitioner’s alleged shoulder injuries, or any other injury, including, but not limited to
chronic pain; and denies that her current condition is a sequelae of a vaccine-related injury.” See
Stipulation § 6. Nonetheless, both parties, while maintaining their above-stated positions, agreed
in a stipulation dated December 7, 2021 that the issues before them can be settled and that a
decision should be entered awarding Petitioner compensation. ECF No. 61.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth
therein.
The stipulation awards:
A lump sum of $91,800.00 in the form of a check payable to Petitioner.
Stipulation § 8. This award represents compensation for all damages that would be available under
42 U.S.C. § 300aa-15(a).
I approve a Vaccine Program award in the requested amounts set forth above to be made
to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
of the Court is directed to enter judgment herewith.
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
> Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice
renouncing their right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MARIA TURKSON,
«: )
, Petitioner, ) No. 18-690V
, ) | Special Master Oler
SECRETARY OF HEALTH AND HUMAN ) = ECF
SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Maria Turkson, petitioner, filed a petition for vaccine compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 e/ seg. (the “Vaccine Program’).
The petition seeks compensation for injuries related to petitioner’s receipt of the 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 vaccination on October 19, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) within the time period set forth in the Table, or in the alternative, that
her shoulder injury was caused by the vaccine. Petitioner also alleges that she suffered chronic
pain that was caused by the vaccine. She further alleges that she experienced the residual effects
of these conditions 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 petitioner sustained a SIRVA Table injury; denies that the
vaccine caused petitioner’s alleged shoulder injuries, or any other injury, including, but not limited
to chronic pain; and denies that her current condition is a sequelae 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 $91,800.00 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.
§ 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 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 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 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 vaccination administered on or around October 19, 2015, as alleged by petitioner in
a petition for vaccine compensation filed on or about May 15, 2018, in the United States Court of
Federal Claims as petition No. 18-690V.
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 the flu vaccine caused petitioner’s alleged left
shoulder injury, chronic pain, or any other injury or condition.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
Respectfully submitted,
PETITIONER:
Poured, bdr beor)
MARIA TURKSGN~
ATTORNEY OF RECORD FOR
E AETION R: /
Kasil LLL
“Latah kal nowghe So Soovyl L Vickovidy
JOSEPH A. VUCKOVICH, ESQ.
Maglio Christopher & Toale, P.A.
1015 15 Street, NW
Suite 1125
Washington, D.C. 20005
Tel (888) 952-5242
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Dale Whusbsr, CN Se, APM, fe
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Health Systems Bureau
Health Resources and Services
Administration
U.S. Department of Health
and Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
Dates: (9-3 1-1
AUTHORIZED REPRSENTATIVE
OF THE ATTORNEY GENERAL:
Lgadni, L-Alanr Iwan
hy QUekyo & Cxrbecee—
HEATHER L. PEARLMAN
Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
Cowan C. taHay
by Qeeuc 8. Bahr cak
COLLEEN C. HARTLEY
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel 202-616-3644
Email; colleen.hartley@usdoj.gov