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

CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0500V
UNPUBLISHED
MARCELLA HARLEY, Chief Special Master Corcoran
Petitioner, Filed: July 2, 2020
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)
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.
Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON JOINT STIPULATION 1
On April 4, 2019, Marcella Harley 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 a left shoulder injury related to
vaccine administration (“SIRVA”) after receiving an influenza vaccine on August 31,
2017. Petition at 1, ¶¶ 2, 15; Stipulation, filed on July 1, 2020, ¶¶ 1-2, 4. Petitioner
further alleges that she received the vaccination in the United States and that neither
she nor any other party has brought a civil action or received an award or settlement for
her injury. Petition at ¶¶ 2, 16-17; Stipulation at ¶¶ 3-5. “Respondent denies that
petitioner sustained a Table SIRVA and denies that the flu vaccine caused petitioner to
suffer a left shoulder injury or any other injury.” Stipulation at ¶ 6.
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 July 1, 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 $72,599.95 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 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
)
MARCELLA HARLEY, )
)
Petitioner, )
) No.19-SOOV
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent )
STIPULATION
The parties hereby stipulate to the following matters:
1. Marcella Harley, 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 ("fluj vaccine, which is a vaccine contained in the Vaccine Injury Table (the
"Table"), 42 C.F.R. § 100.3 (a).
2. Petitioner received the flu vaccine on August 31, 2017.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered from a left shoulder injury related to vaccination
administration ("SIRVA") as a result of receiving the flu vaccine.
S. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on her behalf as a result of her condition.
6. Respondent denies that petitioner sustained a Table SIRVA and denies that the flu
vaccine caused petitioner to suffer a left shoulder injury 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. AB soon as practicable after an entry ofjudgment reflecting a decision consistent with
the terms of this Stipulation, and after petitioner bas 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$72,599.95 in the form ofa check payable to petitioner. This
amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-1S(a).
9. As soon as practicable after the entry ofjudgment 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.
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-l S(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.
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-
1S(i), subject to the availability of sufficient statutory funds.
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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-1S(a) and (d), and subject to the conditions of 42 U.S.C.
§ 300aa-1S(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 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 August 31, 2017, as
alleged by petitioner in a petition for vaccine compensation filed on or about April 4, 2019, in
the United States Court of Federal Claims as petition No. 19-SOOV.
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.
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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 to have pain in her
left shoulder and limited range of motion, or any other injury or her current condition.
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:
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER:
~ EY ~ N~ AL:
EE. REEVES
-
Deputy Director
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRET ARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
(``~
'IS t~ · '2.,'-----
TAMARA OVERBY CATHERINE E. STOLAR
Acting Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch, Civil Division
Healthcare Systems Bureau U.S. Department of Justice
U.S. Department of Health P.O. Box 146
and Human Services Benjamin Franklin Station
5600 Fishers Lane Washington, DC 20044-0146
Parklawn Building, Mail Stop 08N 146B
Rockville, MD 20857
Dated: 'l / 1 / .2,..u
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