McGonigal v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0077V
Filed: September 13, 2019
UNPUBLISHED
LISA MCGONIGAL,
Petitioner,
v. Special Processing Unit (SPU); Joint
Stipulation on Damages; Influenza
SECRETARY OF HEALTH (Flu) Vaccine; Shoulder Injury
AND HUMAN SERVICES, Related to Vaccine Administration
(SIRVA)
Respondent.
Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On January 16, 2018, Lisa McGonigal (“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 alleges that she suffered from left
shoulder injuries as a result of receiving an influenza (“flu”) vaccine on October 3, 2016.
Petition at 1; Stipulation, filed September 12, 2019, at ¶¶ 2, 4. Petitioner further alleges
that she experienced the residual effects of her injuries for more than six months.
Petition at 3; Stipulation at ¶ 4. “Respondent denies that the flu vaccine administered
on or about October 3, 2016, is the cause of petitioner’s alleged left shoulder injury, any
other injury, or her current condition. Respondent further denies that petitioner
sustained a Table injury, namely, a Shoulder Injury Related to Vaccine Administration
(“SIRVA”).” Stipulation at ¶ 6.
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The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
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National 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).
Nevertheless, on September 12, 2019, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. The
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 $40,000.00, 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 § 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
)
LISA MCGONIGAL, )
)
)
Petitioner, )
) No. 18-77V (ECF)
V, ) Chief Special Master Dorsey
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
1. Lisa McGonigal, petitioner, flied 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 a flu vaccination on or about October 3, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that the flu vaccine caused her to develop a left shoulder injury.
Petitioner further alleges that she 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 as a result of her condition.
6. Respondent denies that the flu vaccine administered on or about October 3, 2016, is
the cause of petitioner's alleged left shoulder injury, any other injury, or her current condition.
Respondent further denies that petitioner sustained a Table injury, namely, a Shoulder Injury
Related to Vaccine Administration ("SIRVA").
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-2 l (a)( I), the Secretary of Health and Human Services will issue
the following _vaccine compensation payment:
A lump sum of $40,000.00 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 proceeding upon this
petition.
I 0. Petitioner and her attorney represent that they have identified to respondent all
known sources of payment for items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-l 5(g), including 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 entities that provide health services on a pre-paid basis.
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11 . Payment made pursuant to paragraph 8 of this Stipulation, and any amount 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-I 5(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 and/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
about October 3, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or
about January I 6, 2018, in the United States Court of Federal Claims as petition No. l 8-77Y.
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.
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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, except as otherwise
noted in paragraph 9 above. There is absolutely no agreement on the pa11 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, SIRVA, any other injury, or her 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
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Respectfully submitted, ·
PETITIONER:
-R_``Ji~
LISA MCGONIGAL
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
<:j)l~
SHEALENE MANCUSO
~ C' - -
ARINE E. REEVES
Muller Brazil, LLP Deputy Director
715 Twining Road, Suite 208 Torts Branch
Dresher, PA 19025 Civil Division
Tel: (215) 885-1655 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUIBORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OFTHESECRETARYOFHEALTH RESPONDENT:
AND HUMAN SERVICES:
TAMARA OVERBY
Acting Director, Division ofinjury Trial Attorney
Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 08N1468 Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616--4118
. Dated: 3/ Id-./t?XJ !)
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