Pittman v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 30, 2018
*************************
CYNTHIA PITTMAN, *
*
Petitioner, * No. 17-611v
v. * Special Master Sanders
*
SECRETARY OF HEALTH * Stipulation for Award; Influenza (“flu”)
AND HUMAN SERVICES, * Vaccine; Pneumovax Vaccine; Bilateral
* Shoulder Pain; Rash
Respondent. *
*************************
David J. Schexnaydre, Schexnaydre Law Firm, LLC, Mandeville, LA, for Petitioner.
Voris E. Johnson, Jr., United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On May 8, 2017, Cynthia Pittman (“Petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34 (2012).
Petitioner alleged that the influenza (“flu”) and Pneumovax vaccines she received on November
18, 2015, caused her to suffer bilateral arm and shoulder pain and a rash. See Stip. at 1, ECF No.
32. Petitioner further alleged that she experienced the residual effects of her injury for more than
six months. Id.
On August 30, 2018, the parties filed a stipulation in which they state that a decision should
be entered awarding compensation to Petitioner. Stip. at 2. Respondent denies that the flu vaccine
caused Petitioner’s alleged bilateral arm and shoulder pain and rash, or any other injury. Id.
Respondent also notes that the Pneumovax vaccine is not contained in the Vaccine Injury Table.
Id. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The
undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding
damages, on the terms set forth therein.
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This decision shall be posted on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913
(codified as amended at 44 U.S.C. § 3501 note (2012)). As provided by Vaccine Rule 18(b), each
party has 14 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).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
The parties stipulate that Petitioner shall receive the following compensation:
A lump sum of $45,000.00 in the form of a check payable to [P]etitioner,
Cynthia Pittman. This amount represents compensation for all
damages that would be available under 42 U.S.C. § 300aa-15(a).
Stip. at 2.
The undersigned approves the requested amount for Petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is 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
__________________________________________
)
CYNTHIA PITTMAN, )
)
Petitioner, )
) No. 17-611V (ECF)
v. ) Special Master Sanders
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
STIPULATION
The parties hereby stipulate to the following matters:
1. Cynthia Pittman (“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 sustained following petitioner’s receipt
of an influenza (“flu”) vaccine and a Pneumovax (adult pneumococcal) vaccine, of which only
the flu vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a).
2. Petitioner received flu and Pneumovax vaccines on November 18, 2015.
3. The vaccines were administered within the United States.
4. Petitioner alleges that she subsequently suffered bilateral arm and shoulder pain
and rash, which petitioner alleges was caused-in-fact by her receipt of the above-mentioned
vaccines. Petitioner further alleges that she experienced the residual effects of her injury 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 the flu vaccine caused petitioner’s alleged bilateral arm
and shoulder pain and rash, 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)(1), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $45,000.00 in the form of a check payable to petitioner,
Cynthia Pittman. 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
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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 the
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 and Pneumovax vaccines
administered on November 18, 2015, as alleged by petitioner in a petition for vaccine
compensation filed on or about May 8, 2017, in the United States Court of Federal Claims as
petition No. 17-611V.
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 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 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 bilateral arm
and shoulder pain and rash, and residual effects, or any other injury, were caused-in-fact 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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