McNerney v. Secretary of Health and Human Services ( 2021 )


Menu:
  • Mn the Guited States Court of Federal Claims
    OFFICE OF SPECIAL MASTERS
    No. 19-717V
    UNPUBLISHED
    COLLEEN M. MCNERNEY, Chief Special Master Corcoran
    Petitioner, Filed: December 11, 2020
    V.
    Special Processing Unit (SPU); Joint
    SECRETARY OF HEALTH AND Stipulation on Damages; Influenza
    HUMAN SERVICES, (Flu) Vaccine; Inflammatory
    Granulomatous Lesions
    Respondent.
    Matthew F. Belanger, Faraci Lange, LLP, Rochester, NY, for petitioner.
    Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.
    DECISION ON JOINT STIPULATION"
    On May 16, 2019, Colleen M. McNerney filed a petition for compensation under
    the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, ef seq.2 (the
    “Vaccine Act”). Petitioner alleges that she suffered inflammatory granulomatous lesions
    as aresult of her influenza (“flu”) vaccinations on October 14, 2016 and October 18, 2018.
    Petition at 1; Stipulation, filed at December 9, 2020, Jf] 2, 4. Petitioner further alleges the
    vaccine was administered within the United States, that she suffered the residual effects
    of her injury for more than six months, and that there has been no prior award or
    settlement of a civil action on her behalf as a result of her injury. Stipulation at Jf] 3-5. See
    Petition at 716. “Respondent denies that petitioner's inflammatory granulomatous lesions
    were caused by her flu vaccinations, and denies that her current condition is a sequelae
    of a vaccine-related injury.” Stipulation at J] 6.
    1 Because this unpublished decision contains a reasoned explanation for the action in this case, | am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.
    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 December 9, 2020, 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). /d.
    | 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.?
    ITIS 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
    )
    COLLEEN MCNERNEY, )
    )
    Petitioner, ) No. 19-717V
    ) Chief Special Master
    Vv. ) Brian Corcoran
    ) ECF
    SECRETARY OF HEALTH )
    AND HUMAN SERVICES, )
    )
    Respondent. )
    )
    STIPULATION
    The parties hereby stipulate to the following matters:
    1. Colleen McNerney, 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 influenza (“flu”) vaccinations, which vaccine is contained in the Vaccine Injury Table (the
    “Table”), 
    42 C.F.R. § 100.3
    (a).
    2. Petitioner received flu vaccinations on or about October 14, 2016 and October 18,
    2018.
    3. The vaccines were administered within the United States.
    4. Petitioner alleges that she suffered inflammatory granulomatous lesions caused in fact
    by the receipt of her flu vaccinations. Petitioner further alleges that she experienced the residual
    effects of her condition for more than six months.
    5. Petitioner represents that there has been no prior awardor settlement of a civil action
    for damages as a result of her condition.
    6. Respondent denies that petitioner’s inflammatory granulomatous lesions were caused
    by her flu vaccinations, and denies that her 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-21(a)(1), the Secretary of Health and Human Services will issue
    the following vaccine compensation payment:
    A lump sum of $40,000.00 in the form of acheck 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 proceeding upon this
    petition.
    10. Petitioner and her 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.
    1]. Payment made pursuant to paragraph 8 of this Stipulation, and any amount 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 her
    individual! capacity, and on behalf of her 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 vaccinations administered on
    or about October 14, 2016 and October 18, 2018, as alleged by petitioner in a petition for vaccine
    compensation filed on or about May 16, 2019, in the United States Court of Federal Claims as
    petition No. 19-717V.
    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, 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 actor 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 acompromise 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 inflammatory
    granulomatous lesions, or any other injury or her current condition.
    18. All rights and obligations of petitioner hcreunder shall apply cqually to petitioner’s
    heirs, executors, administrators, successors, and/or assigns.
    END OF STIPULATION
    Respectfully submitted,
    PETITIONER:
    Lllan Mh. The.
    COLLEEN MCNERNEY
    ATTORNEY OF RECORD FOR
    PETITIONER:
    lew)
    MATTHE . BELANGER, ESQ.
    FARACI LANGE, LLP
    28 East Main Street, Suite 1100
    Rochester, New York 14614
    (585) 325-5150
    AUTHORIZED REPRESENTATIVE
    OF THE SECRETARY OF HEALTH
    AND HUMAN SERVICES:
    CALF Dabs Wheshlr, PNSe, fer
    TAMARA OVERBY
    Acting Director, Division of Injury
    Compensation Programs
    Healthcare Systems Bureau
    U.S. Department of Health
    and Human Services
    5600 Fishers Lane
    Parklawn Building, Mail Stop 08N146B
    Rockville, MD 20857
    Dated:_12]4 [20
    AUTHORIZED REPRESENTATIVE
    OF THE ATTORNEY GENERAL:
    [aiKivene’ &—§
    CATHARINE E. REEVES
    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:
    A tae eng
    by (carne eA
    LINDA SSRENZI
    Senior Trial Counsel
    Torts Branch
    Civil Division
    U.S. Department of Justice
    P.O. Box 146
    Benjamin Franklin Station
    Washington, DC 20044-0146
    Tel: (202) 616-4133
    

Document Info

Docket Number: 19-717

Judges: Brian H. Corcoran

Filed Date: 2/5/2021

Precedential Status: Non-Precedential

Modified Date: 2/5/2021