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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1605V
UNPUBLISHED
JIMMIE L. FOSTER, Chief Special Master Corcoran
Petitioner, Filed: June 10, 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)
Philip James Roth, Jr., Marshall, Roth & Gregory, P.C., Asheville, NC, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
On October 17, 2018, Jimmie L. Foster 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 a Shoulder Injury Related to Vaccine
Administration (SIRVA) as a result of his October 19, 2015 influneza (“flu”) vaccination.
Petition at 1; Stipulation, filed June 9, 2020, at ¶¶ 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 on his behalf as a result of his injury. Stipulation at ¶¶ 3-5;
see Petition at ¶¶1, 10, 16-17. “Respondent denies that petitioner sustained a SIRVA
Table injury; denies that the flu vaccine caused petitioner’s alleged shoulder injuries, or
any other injury; and denies injuries, or any other injury; and denies that his current
condition is a sequelae of a vaccine-related injury.” Stipulation at ¶ 6.
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Nevertheless, on June 9, 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 $38,000.00 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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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
*************************************
JIMMIE L. FOSTER, *
*
Petitioner, * No. 18-1605V
* Chief Special Master Corcoran
V. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*************************************
STIPULATION
The parties hereby stipulate to the following matters:
I. Petitioner filed a petition for vaccine compensation under the National Vaccine
Injury Compensation Program, 42 U.S.C. § 300aa-l Oto 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 immunization on October 19, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he sustained a shoulder injury related to vaccine
administration ("SIRVA") within the time period set forth in the Table. Alternatively, petitioner
alleges that his shoulder pain was caused-in-fact by a flu vaccination. He further alleges that he
has 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 on his behalf as a result of his condition.
6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the
flu vaccine caused petitioner's alleged shoulder injuries, or any other injury; and denies that his
current condition is a sequelae 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-2l(a)(l), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $38,000.00 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-l 5(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-2l(a)(l), 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.
I 0. Petitioner and his 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
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.
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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, 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 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, a flu vaccination administered on October 19, 2015, as
alleged by petitioner in a petition for vaccine compensation filed on or about October 17, 2018,
in the United States Court of Federal Claims as petition No. 18-1605V.
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
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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 SIRVA Table injury; that the
flu vaccine caused petitioner's alleged shoulder injuries, or any other injury; or that his current
condition is a sequelae of a vaccine-related 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,
PETITIONER:
ATTORNEYOF . AUTHORIZED REPRESENTATIVE
PETITI.~ - " OF THE ATTORNEY GENERAL:
~ [_c
~ EE. REEVES
Marshall, Roth & Gregory, PC Deputy Director
P.O. Box 769 Torts Branch
Asheville, NC 28802 Civil Division
(828) 281-2100 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT: .
~It``
AND HUMAN SERVICES:
TAMARA OVERBY
``~; L _____
Acting Director Senior Trial Attorney
Division of Injury Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
5600 Fishers Lane P.O. Box 146
Parklawn Building, Mail Stop 08N 146B Benjamin Franklin Station
Rockville, MD 20857 Washington, DC 20044-0146
(202) 616-4181
Dated: Li f, /J.A
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