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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: January 31, 2020
* * * * * * * * * * * * * * *
MARGARET MITCHELL * No. 18-892V
also known as MARGARET L. *
CHAPMAN-MITCHELL, *
*
Petitioner, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH * Stipulation for Award; Influenza (“flu”)
AND HUMAN SERVICES, * Vaccine; Shoulder injury Related to
* Vaccination (“SIRVA”)
Respondent. *
* * * * * * * * * * * * * * *
Kathleen M. Loucks, Lommen Abdo Law Firm, Minneapolis, MN, for Petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On June 22, 2018, Margaret Mitchell (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34
(2012); Pet. at 1, ECF No. 1. Petitioner alleged that the influenza (“flu”) vaccine she received on
December 8, 2016, caused her to suffer a shoulder injury related to vaccine administration
(“SIRVA”). See Stip. at 1, ECF No. 35; Pet. at 1. Petitioner further alleged that she experienced
the residual effects of her injury for more than six months. Stip. at 1.
On January 29, 2020, the parties filed a stipulation in which they state that a decision should
be entered awarding compensation to Petitioner. Id. at 2. Respondent denies that the flu vaccine
caused Petitioner’s alleged SIRVA, or any other injury. Id. at 1. Nevertheless, the parties agree
to the joint stipulation, attached hereto as Appendix A. I find the stipulation reasonable and adopt
it as the decision of the Court in awarding damages, on the terms set forth therein.
1
This decision shall be posted 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), a party has 14 days to identify and move to delete
medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree
that the identified material fits within the requirements of that provision, such material will be deleted from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99–660, 100 Stat. 3755.
The parties stipulate that Petitioner shall receive the following compensation:
A lump sum of $25,000.00 in the form of a check payable to [P]etitioner. This
amount represents compensation for all damages, including pain and
suffering, lost earnings, and past unreimbursable expenses that would be
available under 42 U.S.C. § 300aa-15(a).
Id.
I approve the requested amount for Petitioner’s compensation. Accordingly, an award
should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
2
Case 1:18-vv-00892-UNJ Document 38 Filed 01/29/20 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
___________________________________
)
MARGARET MITCHELL )
also known as MARGARET L. )
CHAPMAN-MITCHELL, )
)
Petitioner, ) No. 18-892V ECF
)
v. ) Special Master Sanders
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner Margaret Mitchell (“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 her flu immunization on December 8, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a shoulder injury related to vaccine administration
(“SIRVA”) within the time period set forth in the Table, that her alleged shoulder condition is
actually caused by the vaccine, and further alleges that she experienced the residual effects of her
injury for more than six months.
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Case 1:18-vv-00892-UNJ Document 38 Filed 01/29/20 Page 2 of 5
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of her condition.
6. Respondent denies that petitioner sustained a SIRVA Table injury and denies that
petitioner’s alleged SIRVA and its residual effects were caused-in-fact by her flu vaccine.
Respondent further denies that the flu vaccine caused petitioner 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 $25,000.00 in the form of a check payable to
petitioner. This amount represents compensation for all damages,
including pain and suffering, lost earnings, and past unreimbursable
expenses 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,
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Case 1:18-vv-00892-UNJ Document 38 Filed 01/29/20 Page 3 of 5
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.
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 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 December 8, 2016, as
alleged by petitioner in her petition for vaccine compensation filed on June 22, 2018, in the
United States Court of Federal Claims as petition No. 18-892V.
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Case 1:18-vv-00892-UNJ Document 38 Filed 01/29/20 Page 4 of 5
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 or the
Secretary of Health and Human Services that the flu vaccination caused petitioner to suffer a
shoulder injury 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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Case 1:18-vv-00892-UNJ Document 38 Filed 01/29/20 Page 5 of 5
Respectfully submitted,
PETITIONER:
~
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: 0 THE ATTORNEY GENERAL:
KATHLE~ . ARlNE E. REEVES
Lommen Abdo, P.A. Deputy Director
I000 International Centre Torts Branch
920 Second Avenue South Civil Division
Minneapolis, MN 55402 U.S. Department of Justice
(612) 339-8131 P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENT ATIVF, ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
TAMARA OVERBY
~ DARRYL R. WISHARD
Acting Director, Division of Senior Trial Attorney
Injury 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 08-N 146B Washington, DC 20044-0146
Rockville, MD 20857 (202) 616-4357
Dated:
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