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

Sn the Auited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1777V
UNPUBLISHED
TERRI ORTEGON, Chief Special Master Corcoran
Petitioner, Filed: January 12, 2021
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)
Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ , for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON JOINT STIPULATION’
On November 16, 2018, Terri Ortegon filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.? (the
“Vaccine Act”). Petitioner alleges that she suffered a right shoulder injury related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine received on or
about October 14, 2016. Petition at 1-4; Stipulation, filed January 12, 2021, 9§ 2-4.
Petitioner further alleges that the vaccine was administered within the United States, she
suffered the residual effects of the injury for more than six months, and there has been
no prior award or settlement of a civil action for damages on her behalf as a result of her
condition. Petition at 1-4; Stipulation at 4 3-5. “Respondent denies that petitioner
suffered the onset of her alleged SIRVA within the Table timeframe; denies that the flu
vaccine caused petitioner’s alleged shoulder injury or any other injury and further denies
that her current disabilities are a sequela of a vaccine-related injury.” 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' Because this unpublished decision contains a reasoned explanation for the action in this case, | am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.
? 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 January 12, 2021, 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 $55,000.00 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 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
’ 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
TERRI ORTEGON,
Petitioner, No. 18-1777V
Chief Special Master Corcoran
V. SPU
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Terri Ortegon, 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 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 or about October 14, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration
(“SIRVA”) as a consequence of the flu immunization she received on or about October 14, 2016,
and further alleges that she suffered 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.
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6. Respondent denies that petitioner suffered the onset of her alleged SIRVA within the
Table timeframe; denies that the flu vaccine caused petitioner’s alleged shoulder injury or any
other injury and further denies that her current disabilities are a sequela 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 $55,000.00, in the form of a check payable to petitioner,
representing compensation forall 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 prepaid basis.
Page 2 of 5
11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded
pursuant to paragraph 9 will be made in accordance with 42 U.S.C. § 300aa-15()), subject to the
availability of sufficient statutory funds.
12. The parties and their attorneys further agree and stipulate that, except for any award
for attorney’s fees and litigation costs, and unreimbursed medical 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 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
United States 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 or about October 14, 2016, as
alleged by petitioner in a petition for vaccine compensation filed on or about November 16, 2018
in the United States Court of Federal Claims as petition No. 18-1777V.
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.
Page 3 of 5
15. If the special master fails to issue a decision in complete conformity with the terms of
this Stipulation or if the United States 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 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 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’s alleged shoulder
injury or any other injury or any of her current disabilities.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
Page 4 of 5
Respectfully submitted,
PETITIONER:
TERRI ORTEGON °
ATTORNEY OF RECORD FOR
PETITIONER:
NDREW D. DOWNING
VAN COTT & TALAMANTE
3030 North Third Street
Suite 790
Phoenix, AZ 85012
(602) 257-9160
AUTHORIZED REPRESENTATIVE OF
THE SECRETARY OF HEALTH AND
HUMAN SERVICES:
CAL7 Dale Wushlar, PNSe, fer
TAMARA OVERBY
Acting Director, Division of
Injury Compensation Programs (DICP)
Healthcare Systems Bureau
U.S. Department of Health
and Human Services
5600 Fishers Lane
Parklawn Building, Stop-08N 146B
Rockville, MD 20857
Dated: ()} liehoz |
Page 5 of 5
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
A 20M Oo IV
CATHARINEE-REEVES HeyertHce v Peru
Proting, Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
Halter & Cpenc® 08 h
Cohi/\\y——~
MALLORI B. OPENCHOWSKI
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 305-0660