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

Sn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-336V
UNPUBLISHED
COLLEEN GARTON, Chief Special Master Corcoran
Petitioner, Filed: December 18, 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)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Lynn Christina Schlie, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION"
On March 6, 2019, Colleen Garton filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seqg.* (the
“Vaccine Act’). Petitioner alleges that she suffered left shoulder injuries related to the
influenza vaccination (SIRVA) she received on October 27, 2017. Petition at 1;
Stipulation, filed at December 17, 2020, 9 1-2. Petitioner further alleges the vaccination
was administered in the United States, she experienced the residual effects of this injury
for more than six months, and there has been no prior award or settlement of a civil action
on her behalf as a result of her condition. Petition at 1, 3; Stipulation at 9 3-5.
“Respondent denies that [Pletitioner sustained a SIRVA Table injury following the flu
vaccination, and further denies that the vaccine caused [P]etitioner to suffer a shoulder
injury or any other injury or her current condition.” Stipulation at J] 6.
' Because this unpublished decision contains a reasoned explanation for the action in this case, | am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 17, 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 $36,225.18 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). /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.*
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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
COLLEEN GARTON, )
)
Petitioner, )
) No. 19-336V
v. ) | Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND HUMAN _)
SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Colleen Garton, petitioner, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (the “Vaccine
Program”). The petition seeks compensation for injuries allegedly related to petitioner’s receipt
of the 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 October 27, 2017.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she sustained a Shoulder Injury Related to Vaccine
Administration (SIRVA) as a result of receiving the flu vaccine, and that she experienced the
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 her behalf as a result of her condition.
6. Respondent denies that petitioner sustained a SIRVA Table injury following the flu
vaccination, and further denies that the vaccine caused petitioner to suffer a shoulder injury or
any other injury or her current condition.
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 $36,225.18 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. § 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 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.
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 unreimbursable expenses, the money provided
pursuant to this Stipulation will be used solely for petitioner’s benefit 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 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. § 300 aa-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 October 27, 2017, as
alleged by petitioner in a petition for vaccine compensation filed on or about March 5, 2019, in
the United States Court of Federal Claims as petition No. 19-336V.
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 of
America or the Secretary of Health and Human Services that the flu vaccine caused petitioner’s
alleged shoulder injury 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
Respectfully submitted,
PETITIONER:
CSD COL
COLLEEN GARTON
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
— .
AMY SENERTH CXxFHARINE E. REEVES
Muller Brazil, LLP Deputy Director
715 Twining Road, Suite 208 Torts Branch
Dresher, PA 19025 Civil Division
(215) 885-1655 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:
AND HUMAN SERVICES: 4 i Dehhre
_—
CAPT Dale P. Mishler, DHSc, APRN, for by {Fann TWH
TAMARA OVERBY LYNN C. SCHLIE
Acting Director, Division of Injury 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 Benjamin Franklin Station
Parklawn Building, Mail Stop 11C-26 Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-3667
Dated: 12449 Jr