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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-392V
UNPUBLISHED
ANN FURMAN, Chief Special Master Corcoran
Petitioner, Filed: November 6, 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)
Jennifer Sayad, Zgheib Sayad, P.C., White Plains, NY, for petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On March 14, 2019, Ann Furman 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 Shoulder Injury Related to Vaccine
Administration (SIRVA) resulting from the adverse effects of an influenza (flu) vaccination
she received on January 25, 2018. Petition at 1; Stipulation, filed at November 4, 2020,
¶¶ 1-2. Petitioner further alleges that the vaccine 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 for civil action for damages on her behalf as a result of
her alleged injuries. Petition at 1, 6; Stipulation at ¶¶ 3-5. “Respondent denies that
[P]etitioner sustained the onset of a SIRVA Table injury within the Table timeframe and
further denies that the flu vaccination caused [P]etitioner’s alleged right shoulder injury or
any other injury.” Stipulation at ¶ 6.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 November 4, 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 $90,723.94 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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Jln tbe mntteb ~tates qtourt of jfeberal qt{atms
OFFICE OF SPECIAL MASTERS
ANN FURMAN,
Petitioner,
Case No. 19-392V (ECF)
V. CHIEF SPECIAL MASTER
CORCORAN
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Ann Furman, 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 the influenza ("flu") vaccine, which is a vaccine contained in the
Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a).
2. Petitioner received the vaccine on January 25, 2018.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she sustained a right shoulder injury related to
vaccine administration ("SIRVA") as a result of receiving the flu vaccine, and alleges
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 alleged injuries.
6. Respondent denies that petitioner sustained the onset of a SIRVA Table
injury within the Table timeframe and further denies that the flu vaccine caused
petitioner's alleged right 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. 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)(l), the Secretary of Health
and Human Services will issue the following vaccine compensation payment:
A lump sum of $90,723.94 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 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-15(g), to the extent that payment has been made
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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 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-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
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resulted from, the flu vaccination administered on January 25, 2018, as alleged by
petitioner in a petition for vaccine compensation filed on or about March 14, 2019. in the
United States Court of Federal Claims as petition No. 19-392V.
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 vaccine caused petitioner's
alleged right shoulder injury or any other injury or her current condition.
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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:
aF~ANk
ARINE E. REEVES
Deputy Di rector
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTONEY OF RECORD FOR
OF THE SECRETARY OF HEAL TH RESPONDENT: ..
AND HUMAN SERVICES: ~ IL tl~
CAPTD&
TAMARA OVERBY
~ I Dr/Se,,~1., ``
MARK ~ ELLIE
u__
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 mark.hellie@usdoj .gov
Rockville, MD 20857 (202) 6 I 6-4208
Dated: \\./ ~ [ )-V
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