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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-316V
UNPUBLISHED
MARK KELNER, Chief Special Master Corcoran
Petitioner, Filed: May 7, 2020
v.
SECRETARY OF HEALTH AND Special Processing Unit (SPU); Joint
HUMAN SERVICES, Stipulation on Damages; Influenza
(Flu) Vaccine; Shoulder Injury
Respondent. Related to Vaccine Administration
(SIRVA)
Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On March 1, 2018, Mark Kelner 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 he suffered right deltoid tendonitis as a result of
an influenza (“flu”) vaccine administered on October 6, 2016. Petition at 1; Stipulation,
filed May 5, 2020, at ¶¶ 1-2, 4. Petitioner further alleges that the vaccine was
administered within the United States; that he suffered the residual effects of his injury
for more than six months; and that there has been no prior award or settlement of a civil
action for damages on his behalf as a result of his alleged injury. Petition at 1, 4;
Stipulation at ¶¶ 3-5. “Respondent denies that the flu immunization is the cause of
petitioner’s alleged right deltoid tendonitis. Respondent further denies that petitioner
sustained a Table shoulder injury related to vaccine administration (“SIRVA”) within 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
2National 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).
timeframe set forth in the Table; and denies that the flu immunization caused petitioner
a SIRVA and/or any other injury.” Stipulation at ¶ 6.
Nevertheless, on May 5, 2020, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. I 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, I award the following
compensation:
A lump sum of $90,000.00 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.
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 the 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.
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THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MARK KELNER,
Petitioner,
v. No. 18-316V
Chief Special Master Brian H. Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Mark Kelner (“petitioner”) 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 an 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 6, 2016, in his right deltoid.
3. The vaccine was administered within the United States.
4. Petitioner alleges that the flu vaccine caused him to develop “right deltoid tendonitis”
and that he experienced 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 his condition.
6. Respondent denies that the flu immunization is the cause of petitioner’s alleged right
deltoid tendonitis. Respondent further denies that petitioner sustained a Table shoulder injury
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related to vaccine administration (“SIRVA”) within the timeframe set forth in the Table; and
denies that the flu immunization caused petitioner a SIRVA and/or any other 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 $90,000.00 in the form of a check payable to petitioner. This amount
represents all compensation for damages that would be available under 42 U.S.C.
§ 300aa-15(a) for injuries allegedly related to petitioner’s receipt of the flu vaccine.
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 his 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 pre-paid basis.
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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 his
individual capacity and on behalf of his 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 6, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or
about March 1, 2018, in the United States Court of Federal Claims as petition No. 18-316V.
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, 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 the flu vaccine caused petitioner’s alleged deltoid
tendonitis, a shoulder injury, and/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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Respectfully submitted,
PE1Tl'IONER:
ATIORNEYOFRECORDFOR
PETITIO
""'-'..-.cil"U'\JLl~ E. REEVES
ANAPOL WEISS Deputy Director
One Logan Square Torts Branch
130 N. 18th St, Ste. 1600 Civil Division
Philadelphia, PA 19103 U.S. Department of Justice
(215) 790-4567 P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATIORNEYOFRECORDFOR
OFTHESECRETARYOFBEALTH RESPONDENT:
AND HUMAN SERVICES:
TAMARA OVERBY
Acting Director, Division.of Injury Senior 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 Benjamm Franklin Station
Parklawn Building. Mail Stop 08N146B Washington, DC 20044-0146
Rockville, :MD 20857 (202) 616-9847
Doted, ~ s; J:.o to
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