Blevins v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 4, 2020
*************************
SANDRA BLEVINS, * No. 17-1161V
*
Petitioner, * Special Master Sanders
v. *
*
SECRETARY OF HEALTH * Stipulation for Award; Influenza (“Flu”)
AND HUMAN SERVICES, * Vaccine; Shoulder Injury Related to
* Vaccine Administration (“SIRVA”)
Respondent. *
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Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On August 28, 2017, Sandra Blevins (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34
(2012). Petitioner alleged that the influenza (“flu”) vaccine she received on December 13, 2014,
caused her to sustain a Shoulder Injury Related to Vaccine Administration (“SIRVA”). Pet. at 1–
2, ECF No. 1. Petitioner further alleged that her injury lasted more than six months. Id. ¶¶ 27–28.
On November 25, 2020, the parties filed a stipulation in which they state that a decision
should be entered awarding compensation to Petitioner. Stipulation ¶ 7, ECF No. 85. The parties
state that “Respondent denies that [P]etitioner sustained a Table SIRVA injury; denies that the
vaccine caused or significantly aggravated [P]etitioner’s alleged injury or any other injury; and,
denies that [P]etitioner’s current disabilities are the result of a vaccine-related injury.” Id. ¶ 6.
Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. See id. ¶ 7.
I find the stipulation reasonable and adopt 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:
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This Decision shall be posted on the website of the United States Court of Federal Claims, in accordance
with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as
amended at 44 U.S.C. § 3501 note (2012)). This means the Decision will be available to anyone with
access to the Internet. As provided by Vaccine Rule 18(b), each party has 14 days within which to
request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or
financial in substance and is privileged or confidential; or (2) that includes medical files or similar files,
the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
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National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
A lump sum of $32,500.00 in the form of a check payable to [P]etitioner.
This amount represents compensation for all damages that would be
available under 42 U.S.C. § 300aa-15(a).
Id. ¶ 8.
I approve 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.3
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
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Pursuant to Vaccine Rule 11(a), entry of judgment is 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
___________________________________
)
SANDRA BLEVINS, )
)
Petitioner, ) No. 17-1161V ECF
)
v. ) Special Master Sanders
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Sandra Blevins, 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 is contained in the Vaccine Injury Table (the “Table”), 42
C.F.R. § 100.3(a).
2. On December 13, 2014, petitioner received a flu vaccine in the left arm.
3. The vaccine was administered within the United States.
4. Petitioner alleges that, as a result of receiving the vaccine, she suffered the onset of a
left shoulder injury related to vaccine administration (“SIRVA”) within the Table timeframe, or
alternatively, that her vaccine caused her left shoulder injury, and that she experienced symptoms
of the injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
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for damages as a result of her alleged injuries.
6. Respondent denies that petitioner sustained a Table SIRVA injury; denies that the
vaccine caused or significantly aggravated petitioner’s alleged injury or any other injury; and,
denies that petitioner’s current disabilities are the result of a vaccine-related injury.
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 $32,500.00, 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. Section 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 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, insurance policies, Federal or
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State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C.
§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.
11. Payment made pursuant to paragraph 8 of this Stipulation, 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 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 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, 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 vaccine administered on December 13, 2014, as alleged by
petitioner in a petition for vaccine compensation filed on or about August 28, 2017, in the United
States Court of Federal Claims as petition No. 17-1161V.
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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 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, 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 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 petitioner sustained a Table injury, or that the
vaccine either caused or significantly aggravated petitioner’s alleged injury or any other injury.
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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