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

Sn the Cited States Court of Federal Clanns
OFFICE OF SPECIAL MASTERS
No.19-240V
Filed: July 14, 2021
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MARY HERRON, * UNPUBLISHED
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Petitioner, * Decision on Joint Stipulation;
** Shoulder Injury Related to
Vv. ** Vaccine Administration
** (“SIRVA”); Influenza (“Flu”)
SECRETARY OF HEALTH ** Vaccine.
AND HUMAN SERVICES, **
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Respondent. **
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Leah V. Durant, Esq., Law Office of Leah V. Durant, PLLC, Washington, DC, for petitioner.
Lara A. Englund, Esq., US Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION!
Roth, Special Master:
On February 12, 2019, Mary Herron [“Ms. Herron” or “petitioner’] filed a petition for
compensation under the National Vaccine Injury Compensation Program.’ Petitioner alleges that
she suffered from shoulder injury related to vaccine administration (“SIRVA”) after receiving an
influenza (“flu”) vaccine on October 6, 2017. Stipulation filed July 14, 2021, at {[J[ 1-4. Respondent
denies that the immunization caused petitioner’s injury. Stipulation at { 6.
' Although this Decision has been fomnally designated “unpublished,” it will nevertheless be posted on the Coutt of
Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899,
2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will be available to anyone
with access to the internet. However, the parties may object to the Decision’s mclusion of certam kinds of
confidential information. Specifically, under Vaccine Rule 1 8(b), each party has fourteen days within which to request
redaction “of any information furnished by that party: (1) thatis a trade secret or commercial or financial in substance
and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be
available to the public. /d.
? 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 subpara graph of 42 U.S.C. § 300aa (2012).
Nevertheless, the parties have agreed to settle the case. On July 14, 2021, the parties filed
a joint stipulation agreeing to settle this case and describing the settlement terms.
Respondent agrees to issue the following payment:
A lump sum of $132,000.00 in the form of a check payable to petitioner, Mary
Herron. This amount represent compensation for all damages that would be available
under § 300aa-15(a).
I adopt the parties’ stipulation attached hereto, and award compensation in the amount and
on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance
with this decision.+
IT ISSO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
> Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the
right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MARY HERRON, )
)
Petitioner, )
)
v. ) No, 19-240V
) Special Master Mindy Michaels Roth
SECRETARY OF )
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner Mary Herron (‘“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 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 6, 2017.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained a shoulder injury related to vaccine administration
(“SIRVA”) within the time period set forth in the Table. She further alleges that she experienced
the residual effects of this condition for more than six months.
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; denies that the
vaccine caused petitioner’s alleged shoulder injury, or any other injury; and denies that her
current condition is a sequelae 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 $132,000.00, 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-1 S(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 XLX 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 or about October 6,
2017, as alleged by petitioner in a petition for vaccine compensation filed on or about February
12, 2019, in the United States Court of Federal Claims as petition No. 19-240V.
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. Ifthe 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 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
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Respectfully submitted,
PETITIONER:
ow Wasfon
MARY HERRON
ATTORNEY OF RECORD FOR
PETITIONER:
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EAH V. RURANT
LAW Ae OF LEAH V, DURANT, PLLC
1717 K Street, NW, Suite 900
Washington, DC 20006
(202) 775-9200
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Dak Wiashler., ONSe, WS, APN, ; fer
TAMARA OVERBY
Acting Director, Division of
Injury Compensation Programs
Healthcare Systems Bureau
Health Resources and Services
Administration
U.S. Department of Health
and Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
Dated: OF, ligkoz. }
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
HEATHER L, PEARLMAN
‘acting Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
CARE A. ENGLUND
Assistant Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 307-3013
lara.a.englund@usdoj.gov