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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0251V
UNPUBLISHED
DONNA CLAYTON, Chief Special Master Corcoran
Petitioner, Filed: January 6, 2022
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)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Lynn Christina Schlie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On February 13, 2019, Donna Clayton 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received on
November 18, 2017. Petition at 1; Stipulation, filed at January 6, 2022, at ¶¶ 2, 4.
Petitioner further alleges that she has suffered from the residual effects of her injury for
more than six months. Petition at ¶¶ 6; Stipulation at ¶¶ 4. Respondent “denies that
Petitioner sustained a SIRVA injury following the flu vaccination, and further denies that
the flu vaccine caused Petitioner to suffer a shoulder injury or any other injury or
Petitioner’s current condition.” 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1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 January 6, 2022, 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 $50,000.00 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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
DONNA CLAYTON, )
)
Petitioner, ) No. 19-251V
) Chief Special Master Corcoran
V. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Donna Clayton, 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 vaccine is contained in the Vaccine Injury Table
(the "Table"), 42 C.F.R. § 100.3 (a).
2. Petitioner received the flu vaccine on November 18, 2017.
3. The vaccine was administered within the United States.
4. The petition alleges that petitioner sustained a Shoulder Injury Related to Vaccine
Administration ("SIRVA") as a result of receiving the flu vaccine, and that petitioner
experienced the residual effects of this injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil
action for damages arising out of the alleged vaccine injury.
6. Respondent denies that petitioner sustained a SIRVA Table injury following the flu
-1-
vaccination, and further denies that the flu vaccine caused petitioner to suffer a shoulder injury
or any other injury or petitioner's current condition.
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-2l(a)(l), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $50,000.00 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. § 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 any
proceeding upon this petition.
10. Petitioner and petitioner's 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,
and represent that they have identified to respondent all known sources of payment for items or
-2-
services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g).
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 unreimbursable 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
petitioner's individual capacity, and on behalf of petitioner's 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 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 vaccination as alleged by petitioner in a petition for vaccine compensation
filed on or about February 13, 2019, in the United States Court of Federal Claims as petition
No. 19-251V.
14. If petitioner should die prior to entry of judgment, this agreement shall be
-3-
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 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 injury
or any other injury or petitioner's current 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
-4-
Respectfully submitted,
P~TITIONER:
AUTHORIZED REPRESENTATI-yE
OF THE ATTORNEY GENERAL:!
``P<~
HEATHER L. PEARLMAN
Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
ii: Ldurant@durantlk.com Benjanm Franklin Stati>n
Washington, DC 20044-0146
ORl7ED REPRESENTATIVE ATTORNEY OF RECORD FOR
0 TIIE SECRETARY OF HEALTH RESPONDENT:
~ D HUMAN SERVICES:
l-vf VJ t1 (_ S~
VaA ~ I ~ c - , A/JA?A,), ,t, `` L-P``
T OVERBY LYNN C. SCHUE
A ting Director, DivEion of Injury Trial Attorney
¢ompematioo Programs Torts Branch
Htahh Syste~ Bureau Civil Division
Htahh Resources and Services U.S. Department of Justx:e
Administration P.O. Box 146
U S. Department of Health Benjamin Franklin Station
5
r. Human Services
Fishers Lane, 08N 146B
R kvilk:, MD 20857
Washington, DC 20044-0146
Tel; 202-616-3667
Email: Lynn,.Schlie@usdoj.gov
D~ted: o, /o23-.
-5-