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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0943V
UNPUBLISHED
LILLIE JOHNSON, Chief Special Master Corcoran
Petitioner, Filed: September 20, 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)
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On July 31, 2020, Lillie Johnson 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 left shoulder injuries related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to her on
October 11, 2018. Petition at 1; Stipulation, filed at September 20, 2022, ¶¶ 2-4. Petitioner
further alleges that her injury lasted for more than six months. Petition at 1; Stipulation at
¶ 4. Respondent denies “that petitioner sustained a SIRVA Table injury, denies that
petitioner’s alleged shoulder injury was caused-in-fact by the flu vaccine, and denies that
the flu vaccine caused petitioner any other injury or her current condition.” Stipulation at
¶ 6.
Nevertheless, on September 20, 2022, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. I find the
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
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).
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, I award the following
compensation:
A lump sum of $100,000.00, 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 Section 15(a). Id.
I 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.3
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.
2
IN THE UNITED STATES COURT O'F Jl'EDIRALCLAIMS
OfflCE OF SPECIAL MASTERS
)
LILLIE JOHNSON, )
)
Petitioner, )
)
v. ) No.20-943V
) Chief Special Master Brian H. Corcoran
SECRETARY OF HEALTII AND ) ECF
HUMAN SER.VICES, )
)
Respondent. )
The parties hereby stipulate to the following matters:
I. Lillie Johnson, petitioner, filed a petition for vaccine compensation under the National
Vaccine Injury Compensation Prosram, 42 U.S.C. §§ 300..l Oto -34 (the "Vaccine Program").
The petition seeks compensation for injuries allegedly related to petitioner•s receipt of an
influenza ("fluj vaccine, which vaccine is con1ained in the Vaccine Injury Table (the "Tablej,
42 C.F.R. § 100.3(a).
2. Pe1itioner received the flu vaccine in her left shoulder on October 11, 2018.
3. Tho vaccination was administered within the United States.
4. Petitioner alleges that she suffered a left Shoulda- Injury Related to Vaccine
Administration C-SIRVA") within 1he 1ime period set for1h in the Table, and further alleges 1hat
she experienced the fflridual effects oflku- injwy f « more than six months.
S. Petitioner represents that there has been no prior award or settlement ofa civil action
for damages O? her behalf as a raultof her condition.
6. Respondent denies that petitioner SU81Bined a SIR.VA Table injury, denies that
petitioner's alleged shoulder injury was cauaed-in-fact by the flu vaccine, and denies that the flu
vaccine caused petitioner any other injwy or her current condition.
7. Maintairung their above-stated positions, the pardes.nevertboless now agree that the
issues between them shall be aeulcd and that a decision should be entered awarding the
compensation descn'bed in parasraph 8 ofthis Stipulation.
8. As soon as practicable after an en1l'y ofjudgment 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 (aXl ), the Secretary ofHealth aad Human Services will issue
the following vaccine compenaa1ion payment
A lump awn of $100.000.00 in the form ofa chodc payable to petitioner. This
amountrepresen1S compensation for an damages that would be available under 42
U.S.C. f 300aa--1S(a).
9. As soon as practicable after the entry ofjudgment on cnlitlemcnt in this case, andafrr.r
. petitioner has f'tled both a proper and timely election to teceivc compenation pursuant to
42 U.S.C. § 300aa-21(a)(l), and an application, the par1ies will submit to furtherproceedinp
before tho special master to awanheaaonable &Uom8)'8' fees and coats inownd in proceeding
upon 1his petition.
10. Pethioner and her attorney represent that compmaaaion to be provided pursuant to
this Stipulation is n.ot for any i1mns or services for which tho Program ia not primarily liable
under42 U.S.C. § 300aa-15(&), to the extent that payment bu been made or can reasonably be
expected to be made under any State compomation propams, in8UIUCO policies. Federal or
State health benefits proarams (other than Title XIX of the Social Security Act (42 U.S.C.
§ 1396 et seq.)), or by entities that provide healduervices on a pre-paid basis.
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11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded
pursuant to paragraph 9 ofthis Stipulation will be made in accordana, wi1h 42 U.S.C. § 300aa-
1S(i), subjoot eo dto availability of•uffichtnt statutory funds.
12. 1be parties and 1bcir attorneys further agree and stipulate that, except for any award
for attomeys' 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 of42 U.S.C. § 300a-15(a) and (d), and subject to the conditions of 42 U.S.C.
§ 300aa-1S(g) and (h).
13. In retum for the payments dcscnoed in paragraphs 8 and 9, petitioner, in her
individual capacity, and on behalfofher heirs, cxecumrs, administtatorst succesaan or assigns,
does forever irrevocably and unconditionally release, acquit and dischmge the United States and
the Secretary of Health aad Human Services m>many and all actions or causes of action
(including agreements, judgmonfl. claim&, damages, loss ofservices, expeas• 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 Compcmation
Pro~ 42 U.S.C. § 300aa-10 et seq., on account of. or in any way growing outof,.any and all
known or unknown, suspected or unsuspected personal injuries to or death ofpetitioner resulting
from, or alle88(1 t.o have n,uJted from, the fiu vaccination sdminisfieredoa October 11, 2018, as
all~ by petitioner in a petition forvaccinecompeosalion filod on or aboutJuly 31, 2020, in
the United States Court of Federal Claims u petition No. 20-943V.
14. If petitioner should die prior t.o en1ry ofjudgment, this agreement sbaD be voidable
upon proper no1icc to the Cowt on behalfofeither or both of the parties.
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1S. If the special master fails to issue a decision in c;omplete conformity with the terms
of this Stipulation or if the Court of Federal Claims fails to enterjudgment in oontormity with a
decision chat is in oomploto coafonnity wida dto tenna ofdt;. Stipulation, tho.a tho . P ~
settlement and 1his Stipulation shall be voidable at 1ho sole discretion.o fei1her party.
16. This Stipulation expresses a full and oompletc negotiated scUlement of liability and
damages claimed under1he National Childhood Vaccine Injury Act of 1986, as amended, except
as otherwise noted in pangraph 9 above. There is absolutely no agn,emaiton tbc part ofthe
parties hereto to make any payim,nt or to do any act or thing other than is herein expieasly statod
and clearly agreed to. The parties fwdlcr qrcc and understand that the award descn"bed in this
Stipulation may reflect a compromiao of1he parties' respcctivepoaitiona as to liability and/or
amount of damages, and furtha-, that a change in the nature ofthe ioJwy or condition or in die
items of compensatibn sought, is not p,unds to modify or revise this ap::emcnt
17. This StipuJation shall not be coastrued as an admisaion by the Unit.eel States or the
Secretary of Health and Human Services that the flu vaccine caused petitioner's alleged shoulder
injury or any otherinjury.
18. All rights and obligations of petitioner hemmda-shall apply equally to petitioner's
heir&, executors, administrators, succalSOl'8, ancVor aaaigos.
END OF STIPULATION
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Respectfully submitted,
PETITIONER:
~
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LllUEJOll • N
A1TORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITI OF THE ATrORNEY GENERAL:
w4:U``
HE.ATHER L. PEARLMAN
Muller Brazil. LLP Deputy Director
715 Twining Road. Suite 208 Torts Branch
Dresher, PA 19025 Civil Division
Tel: (215)88S-16SS U.S. DepanmcntofJustice
Email: max@myvaccincJawyer.com P.O. Box 146
Benjamin Franklin Station
Washington, DC20044-0146
AUTHORIZED REPRESENTATIVE A1TORNEYOFRECORDFOR
OFTHESECRETARYOFBEALTB RESPONDENT:
AND RUMAN SERVICES:
George R. Grimes- Oitbl1slgMclbfGeof9eR.
~-S14
S14 o.c 2022.Cf.ol51l:lek1S«oo'
CDR GEORGE RBBD GRIMES, MD, MPH KYLEE. POZZA
Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch
Health Systems Bureau Civil Division
Health Resources and Services U.S. Department of Justice
Administration P.O. Box 146
U.S. Department of Health Benjamin Franklin S1ation
and Human Services Washinaton. DC 20044..() l 46
5600 Fishers Lane, 0BN 146B Tel: (202)616-3661
Rockville, MD 208S7 E-mail: Kyle.Pozza@usdoj.gov
Dated:
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