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

Sn the Guited States Court of Federal Clanns
OFFICE OF SPECIAL MASTERS
Filed: August 24, 2022
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BARBARA GLOVER, UNPUBLISHED
Petitioner, No. 20-736V
V. Special Master Dorsey
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Decision Based on Stipulation; Influenza
(“Flu”) Vaccine; Transverse Myelitis
(“TM”).
Respondent.
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Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION BASED ON STIPULATION!
On June 19, 2020, Barbara Glover (“Petitioner”) filed a petition in the National Vaccine
Injury Program? alleging that as the result of an influenza (“flu”) vaccine administered on
October 18, 2018, she developed transverse myelitis (“TM”). Petition at Preamble (ECF No. 1).
On August 23, 2022, the parties filed a stipulation recommending an award of
compensation to Petitioner. Stipulation (ECF No. 52). Respondent denies that the flu vaccine
caused Petitioner’s alleged TM or any other injury. Nevertheless, the parties agree to the joint
' Because this Decision contains a reasoned explanation for the action in this case, the
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). 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.
? The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this Decision
to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
1
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 .
The parties stipulate that Petitioner shall receive the following compensation:
(1) A lump sum of $70,000 in the form of a check payable to Petitioner, representing
compensation for all damages that would be available under 42 U.S.C. § 300aa-
15(a).
Stipulation at{ 8. 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.+
IT IS SO ORDERED.
s/Nora B. Dorsey
Nora B. Dorsey
Special Master
3 Pursuant to Vaccine Rule 1 1(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
BARBARA GLOVER,
Petitioner, No. 20-736V
Special Master Dorsey
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Barbara Glover, 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 a flu vaccine on or about October 18, 2018.
3. The vaccine was administered within the United States.
4. Petitioner alleges that the flu immunization she received on or about October 18, 2018
caused her to develop transverse myelitis (“TM”), and further alleges that she suffered 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 on her behalf as a result of her condition.
6. Respondent denies that the flu vaccine caused petitioner’s alleged TM or any other
injury, and further denies that her current disabilities are a sequela of a vaccine-related injury.
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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 $70,000.00 in the form of a check payable to petitioner, representing
ae for all damages that would be available under 42 U.S.C. § 300aa-
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 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-15(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 prepaid basis,
11, Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded
pursuant to paragraph 9 will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the
availability of sufficient statutory funds.
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12. The parties and their attorneys further agres and stipulate that, except for any award
for attorneys’ fees and litigation costs, and past unreimbursed 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 her individual
capacity, and on behalf of her heirs, executors, administrators, successors, and 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 flu vaccination administered on or about October 18, 2018, as
alleged by petitioner in a petition for vaccine compensation filed on or about June 19, 2020, in the
United States Court of Federal Claims as petition No. 20-736V.
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 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.
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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 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, attd 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 TM or
any other injury or any of her current disabilities,
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:
BARBARA GLOVER
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
LA dove Vaewre re. Wiswaap, Reciwe eevty
EIGFKA. FINFER [/ HEATHER L, PEARLMAN .
MULLER BRAZIL LLP Fon Deputy Director ae
715 Twining Road Torts Branch
Suite 107 Civil Division
Dresher, PA 19025 U. S. Department of Justice
(215) 885-1655 P. O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH AND RESPONDENT:
HUMAN SERVICES:
Digitally signed by George R. Gri
George R. Grimes -S14-s14 ¥ mes SAA
Date: 2022.08.10 09:59:17 -04'00'
CDR GEORGE REED GRIMES, MD, MPH Coe MALLORI B, OPENCHOWSKI
Director, Division of Injury Trial Attomey
Compensation Programs Torts Branch, Civil Division
Health Systems Bureau U.S. Department of Justice
Health Resources and Services P.O. Box 146
Administration Benjamin Franklin Station
U.S. Department of Health Washington, D.C. 20044-0146
and Human Services Tel; (202) 305-0660
5600 Fishers Lane, 08N146B mallori.b.openchowski@usdoj.gov
Rockville, MD 20857
Dated: eliq [z0o2e
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