Brazelton v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0851V
Filed: May 25, 2017
Unpublished
****************************
CARRIE BRAZELTON, *
*
Petitioner, * Joint Stipulation on Damages;
* Influenza (“Flu”) Vaccine; Shoulder
v. * Injury Related to Vaccine Administration
* (“SIRVA”); Special Processing Unit
SECRETARY OF HEALTH * (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
****************************
Amber D. Wilson, Maglio Christopher and Toale, PA, Washington, DC, for petitioner.
Voris E. Johnson, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
Dorsey, Chief Special Master:
On July 20, 2016, Carrie Brazelton (“petitioner”) 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 alleged that as a result of receiving the influenza
(“flu”) vaccine on September 30, 2015, she suffered a shoulder injury related to vaccine
administration (“SIRVA”). The case was assigned to the Special Processing Unit
(“SPU”) of the Office of Special Masters.
On September 23, 2016, the undersigned issued a ruling on entitlement, finding
petitioner entitled to compensation for SIRVA. On May 24, 2017, the parties filed the
attached joint stipulation on damages, stating that a decision should be entered
awarding petitioner compensation in the amount of $100,000.00. Stip. at ¶ 9. The
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
undersigned finds the stipulation reasonable and adopts it as the decision of the Court
in awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned
awards the following compensation:
A lump sum of $100,000.00 in the form of a check payable to petitioner,
Carrie Brazelton. Stip. at ¶ 9. This amount represents compensation for all
damages that would be available under 42 U.S.C. § 300aa-15(a). Id.
The undersigned approves 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/Nora Beth Dorsey
Nora Beth Dorsey
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
__________________________________________
)
CARRIE BRAZELTON, )
)
Petitioner, )
) No. 16-851V (ECF)
v. ) Chief Special Master Dorsey
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
STIPULATION
The parties hereby stipulate to the following matters:
1. Carrie Brazelton (“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 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 a flu vaccine in her left deltoid on September 30, 2015.
3. The vaccine was administered within the United States.
4. Petitioner suffered a shoulder injury related to vaccine administration (SIRVA).
This includes, but is not limited to, petitioner’s bursitis, tendinitis, and impingement in her left
shoulder.
5. Petitioner experienced the residual effects of her injury for more than six months.
6. There is not a preponderance of evidence demonstrating that petitioner’s
condition is due to a factor unrelated to vaccination.
7. Petitioner represents that there has been no prior award or settlement of a civil
action for damages as a result of her condition.
8. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine
Act for her SIRVA. Therefore, a decision should be entered awarding the compensation
described in Paragraph 9 of this stipulation.
9. 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 in the form of a check payable to petitioner, Carrie
Brazelton. This amount represents compensation for all damages that would be
available under 42 U.S.C. § 300aa-15(a).
10. 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.
11. 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.
12. Payment made pursuant to paragraph 9 and any amounts awarded pursuant to
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paragraph 10 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i),
subject to the availability of sufficient statutory funds.
13. 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).
14. In return for the payments described in paragraphs 9 and 10, petitioner, in her
individual capacity, and on behalf of herself, 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
September 30, 2015, as alleged by petitioner in a petition for vaccine compensation filed on or
about July 20, 2016, in the United States Court of Federal Claims as petition No. 16-851V.
15. 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.
16. 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’
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settlement and this Stipulation shall be voidable at the sole discretion of either party.
17. This Stipulation expresses a full and complete negotiated settlement of liability
and damages claimed under the National Vaccine Injury Act of 1986, as amended, except as
otherwise noted in paragraph 10 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.
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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