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

CORRECTED
Sn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1279V
UNPUBLISHED
SALINA M. FLORES, Chief Special Master Corcoran
Petitioner, Filed: August 29, 2022
V.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages; Influenza
HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA)
John Cantrell, Law Office of John R. Cantrell, Hammond, IN, for Petitioner.
Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION"
On September 28, 2020, Salina M. Flores filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, ef seq.* (the
“Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza vaccine received on or about
September 29, 2017. Petition at 1; Stipulation, filed August 29, 2022, at 4 2-4. Petitioner
further alleges that the vaccine was administered in the United States, she experienced
the residual effects of her condition for more than six months, and there has been no prior
award or settlement of a civil action for damages arising out of the alleged vaccine injury.
Petition at 7F 2, 10-12; Stipulation at 7 3-5. “Respondent denies that petitioner sustained
a SIRVA Table injury; denies that the vaccine caused petitioner’s alleged shoulder injury
or any other injury; and denies that petitioner’s current condition is a sequela of a vaccine-
related injury.” Stipulation at J] 6.
' Because this unpublished Decision contains a reasoned explanation for the action in this case, | am
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, | agree that the identified material fits within this definition, | will redact such material from
public access.
? National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
Nevertheless, on August 29, 2022, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. | find the stipulation
reasonable and adopt it as my decision awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, | award the following
compensation:
A lump sum of $40,000.00 in the form of a check payable to Petitioner.
Stipulation at J 8. This amount represents compensation for all items of damages
that would be available under Section 15(a). /a.
| approve the requested amount for Petitioner's compensation. In the absence of
a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court is directed to
enter judgment in accordance with this decision.*
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
SALINA M. FLORES }
)
Petitioner, ) No. 20-1279V
) Chief Special Master Corcoran
Vv. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1, Petitioner, Salma Flores, 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 the vaccine in her left arm on or about September 29, 2017.
3. The vaccine was administered within the United States.
4. The petition alleges a claim of a shoulder injury related to vaccine administration
(“SIRVA”) within the time period set forth in the Table, or in the alternative, that the alleged
shoulder injury was caused by the vaccine. The petitioner further alleges that petitioner
experienced the residual effects of this condition for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil
action for damages arismg out of the alleged vaccine injury.
6. Respondent denies that petitioner sustamed a SIRVA Table injury; denies that the
vaccine caused petitioner’s alleged shoulder injury or any other injury; and denies that
petitioner’s current condition is a sequela of a vaccine-related injury.
7. Maintaining ther 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 followmg 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-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 any proceeding upon this petition.
10. Petitioner and petitioner’s attomey 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, msurance
policies, Federal or State health benefits programs (other than Title XTX of the Social
Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-
paid basis, and 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).
11. Payment made pursuant to paragraph 8 and any amounts 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-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in
petitioner’s individual capacity, and on behalf of petitioner’s heirs, executors, administrators,
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 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 September 29, 2017, as alleged ina
petition for vaccme compensation filed on or about September 28, 2020, in the United States
Court of Federal Claims as petition No. 20-1279V.
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 mn 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, 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 im 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 vaccme caused petitioner’s alleged
injury or any other injury or petitioner’s current condition, or that petitioner suffered an injury
contained in the Vaccine Injury Table.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner’s heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
Respectfully submitted,
Noe,
ale FLORES
ATTORNEY OF RECORD FOR
“Wil Bit
R. I hal
a Offices of John R. Cantrell
7233 Indianapolis Blvd.
Hammond, IN 46324
219-554-0118
jcantrell30@hotmaiLcom
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
George R. Grimes distally signed by George R.
Grimes -514
-S 1 4 Date: 2022.06.14 09:08:44 -04'00°
CDR GEORGE REED GRIMES, MD, MPH
Director, Division of Injury
Compensation Programs
Health Systems Bureau
Health Resources and Services
Admmistration
U.S. Department of Health and
Human Services
5600 Fishers Lane, 08-N146B
Rockville, MD 20857
Dated: 6 muee
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
HodstoaNt Pe ti
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
J . ]
PARI@A TABASSIAN
Trial ‘Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
202-305-4035
patisa.tabassian@usdoj. gov