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

REISSUED FOR PUBLICATION
ORIGIN l JAN 10 2017
OSM
U.S. COURT OF FEDERAL CLAIMS
3ln tbe Wniteb ~tate~ ~ourt of jfeberal ~laim~
OFFICE OF SPECIAL MASTERS
No. 16-407V
Originally Filed: January 5, 2017 FILED
Refiled in Redacted Form: January 10, 2017
Not for Publication JAN 10 2017
U.S. COURT OF
************************************* FEDERAL CLAIMS
S.B., *
*
* Damages and costs decision based
Petitioner, * on stipulation; Tetanus, diphtheria, ·
* and acellular pertussis ("Tdap")
V. * vaccine; shoulder injury related to
* vaccine administration ("SIRVA")
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
S.B., Chicago, IL, prose.
Debra A. Filteau Begley, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION A WARDING DAMAGES AND LITIGATION COSTS 1
On January 4, 2017, the parties filed the attached stipulation in which they agreed to
settle this case and described the settlement terms. Petitioner received Tetanus, diphtheria, and
acellular pertussis ("Tdap") vaccine on July 1, 2014. Petitioner alleges that her receipt of the
Tdap vaccine caused her to suffer a shoulder injury related to vaccine administration ("SIRVA").
Petitioner further alleges that she experienced the residual effects of this injury for more than six
months. Respondent denies that petitioner's SIRVA, or any other injury, was caused by her
Tdap vaccination. Nonetheless, the parties agreed to resolve this matter informally.
1
When this decision was originally filed the undersigned advised her intent to post it on the United States
Comt of Federal Claims' website, in ac.cordance with the E-Government Act of2002. 44 U.S.C. § 3501note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance
with Vaccine Rule l 8(b), petitioner filed a timely motion to redact certain information. This decision is
being reissued without petitioner's full name. The stipulation attached to this decision has also been
redacted to remove petitioner's name, signature, and address. Except for those changes and this footnote,
no other substantive changes have been made. This decision will be posted on the court's website with no
further opportunity to move for redaction.
The court finds the terms of the stipulation to be reasonable, adopts the parties'
stipulation, and awards compensation in the amount and on the terms set forth in the stipulation.
Pursuant to the attached stipulation, the court awards $70,000.00 for reimbursement for all
damages that would be available under 42 U.S.C. § 300aa-15(a) (2012).
The parties have also agreed on an appropriate amount for litigation costs in this case.
Petitioner requests $704.37 in costs. Respondent does not object to this amount. The
undersigned finds this amount to be reasonable.
Accordingly, the court awards:
a. a lump sum of $70,000.00, representing compensation for all damages that would be
available under 42 U.S.C. § 300aa-15(a). The award shall be in the form ofa check
made payable to petitioner in the amount of $70,000.00; and
b. a lump sum of$704.37, representing reimbursement for petitioner's litigation costs.
The award shall be in the form of a check made payable to petitioner in the amount of
$704.37.
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. 2
IT IS SO ORDERED.
.
Dated: January 10, 2017 cfA UJLA__ Q_, ~
Laura D. Millman
Special Master
2 Pursuant to Vaccine Rule 11 (a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
2
case 1:16-vv-00401-uNJ ORrGJ``1[ 01104111 Page 1of6
FILED
JAN`` 2017
OSI/I
U.S. COURT OF
IN THE UNITED STATES COURT OF li'EDERAL CLAIMS Fl!DEllAI. CLAIMS
OFFICE OF SPECIAL MASTERS
)
)
Petitioner, ) No. 16-407V
) SPllCIAL MASTER
v. ) LAURA D. MILLMAN
)
SECRETARY OF HEAL'.J:H )
AND lnJMAN SERVlCES, ) RECEIVED
) FROM NIGHTBOX
Respondent. )
``.````````.> ,JJ'.N U.:J 2017
Unite~ 6tlitGt court ot Appeals
for The Federal Circuit
The parties hereby stipulate to the following matters:
I. Petitioner tiled a petition for vaccine compensation undct· the National Vaccine
Injury Compensation Prog1•um, 42 U.S.C. ~ :lOOaa-10 to 34 (th~ "Vaccine Program"). The
petition seeks compensation for lnjmlcs allegedly related to petltlono1·'s rocelpt of the Tetanus,
diphtheria, and ac~Jlula1· pertussis ("Tdap") vaccine, which vaccine is contained In the Vaccine
Injury Table (the "Table"), 42 C.P.R. § l00.3(n).
2. Petitioner received a Tdnp immunization on July I, 2014.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered n shoulder injury rotated to vaccine
administration ("SIRVA") that was caused-In-fact by her Tdap vncolnatlon and that she has
suffered the 1·eslduul effeQts of this injury for l\lOl'O tl1an six months.
5. Petitioner represents that there has been no prior award or settlement of a civil
action for damages 011 hot• behalf as a result of her condition.
RECEIVED - U!lCFC
.JAN ~ 4 2017
Case 1:16-w-00407-UNJ Document 14 Filed 01/04/17 Page 2 of 6
6. Respondent denies that petitioner's alleged SIRVA, or any othel' injury, was
caused-in-fact by bet· Tdap vaccination.
7. Malntainlngtheit· above-stated positions, the parties neverthell)Ss now agi-ee that
the Issues between them shall be settled and that n decision should be entered awarding the
compensation desot'ibed in pnragraph 8 of this Stipulation.
8. As soon ns 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), th~ Secretary of Health and Human
Services will issue the following vaccine compensation payments:
a. A lump sum of$70,00().00 in the form ofa check payable to petitioner. This
amount repl'esents compensation for all damages that would be avallable imder 42
U.S.C. § 300aa·l5(a), and
b. A lump sum of$704.37 In the form of a chock payable to petitioner, for litigation
costs available under 42 U.S.C. § 300aa-15(e).
9. Petitioner represents that she has ldentlfled to respondent all known sources of
payment fo1· items or services forwhioh the Progmm ls not primarily liable under 42 U.S.C.
§ 300aa-1S(g), including State c01qponsation 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 entitles that provide health services on a pre-paid basis.
IO. Payments made pursuantto paragraph 8 of this Stipulation will be made in
accordance with 42 U.S.C. § 300aa-15(1), subject to the availability of sufficient statutmy funds.
11. The parties further agree and stipulate that, exoept fur any award for litigation
costs, the money ptovided pursuant to this Stipulation will be used solely. fot· the benefit of
petltioneras contemplated by a strlctconstruction of42 U.S.C. § 300aa-15(a) and (d). and
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Case 1:16-w-00407-UNJ Document 14 Filed 01/04/17 Page 3 of 6
subject to the condltlons of42 U.S.C. § 300aa-l5(g) and (h).
12. In return fot• the payments described in pm-agraph 8, petitioner, in her Individual
capacity, and on behalf of he1· heirs, executors, adminisfl·ators, 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 bl'ougbt in
the Court of Federal Claims, tmder the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa· 10 et seq., on ae-0ount of, or in any way gt"Owing out of, any and all known or
unknown, suspected or unsuspected personal injuries to or death ofpetitione1· resulting from, or
alleged to have resulted from, her Tdap vaccination adminbltered on July l, 2014, as alleged by
petitioner in a petition for vaccine compensation filed on or about March 28, 2016, in the United
States Comt of Federal Claims as petition No. 16-407V,
13. lfpetltioner should die prior to entry of judgment, this agree~ent shall ba
voidable upon proper notice to the Court on behalf of either or both of the parties.
14. If the special master fails to issue a decision In complete conformity with the
terms of this Stipulation 01· if the Court of Federal Claims fails to enter judgment in conformity
with a docision that ls in completo conformity with the terms of this Stipulation, then tho parties' I
settlement and this Stipulation shall be voidable at the sole discretion of either party.
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Case 1:16-w-00407-UNJ Document 14 Filed 01/04/17 Page 4 of 6
IS. This Stipulation expresses a full and completo negotiated settlement of liablllty
and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amendod,
except as otherwise noted in pai·agraph 9 above. There is absolutely no agreement on the pa1t of
the parties hereto to make any payment or to do any aot or thing othe1• than is herein expressly
stated and clearly agreed to. The parties fu1ther agree and understand that the award described In
this Stipulation may reflect a compromise of the parties' respective positions as to lfobllity 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.
16, This Stipulation shall not.beconstrned as an admission by the United States or the
Secl'etary of Health and Human Services that petitione1·'s alleged SIRVA, or any othe1· condition,
was caused-in-fact by her Tdap vaccine.
I 7. All l'ights and obligations of petitioner hereunder shall apply equally tc
petitioner's heh'S, executors, administrators, successors, and/01· assigns.
END OF STlPULATlON
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Case 1:16-vv-00407-UNJ Document 14 Filed 01/04/17 Page 5 of 6
Respectl\dly submitted,
PETITIONER: AUTIIOlUZED REPl.illSENTATlVE
OF nm ATTORNEY GENERAL:
[.\___.
1~ B.RBBVES
Pl'o se gI p ty Director
Torts Branch
Clvll Division
U.S. Department of Justice
P.O. Box 146
Be1\jamin Fm11klln Station
Washington, DC 20044-0146
AUTHORIZED REl'RESENTA'l'lVE OF ATTORNEY OF RECORD FOR
THE SECRET OF HEALTH AND RESPONDENT:
HUMAN ' V: CE :
AR AlR, M.D.
})J0yz:, A·~
DEBRA A. FILTEAU BEOl.,EY · ~
Director, Division oflajm-y Trial Attorney
Compensation Programs Torts Branch
Henlthcm·e Systems Bureau Civil Division
Health Resources nnd Servlces Administration U.S. Depm·tmcnt of Justice
U.S. Department of Health and lfoman Services P.O. Box 146
5600 Fishers Lane Benjamin Frnnklin Station
Porkluwn Building, MaH Stop 08N!46J3 Washington, DC 20044-0i46
Rockville, MD 20857 (202) 616. 4138
Dated:~ rt____
Case 1:16-w-00407-UNJ Document 14 Filed 01/04/17 Page 6 of 6
CERTIFICATE OF SERVICE
I hereby certily that on this 3rd day of January, 2017, the foregoing STIPULATION was
served electronically and buy U.S. Mail, postage prepaid, upon:
-----, 2
('\b /bA_/ c~-----, 1
DTIBRA A. FILTEAU BEGLEY '
Trial attorney
Torts Branch, Civil Division
U.S. Department ofJusticc
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202)616-4181