Phelps v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0229V
Filed: March 23, 2018
UNPUBLISHED
KESHA PHELPS,
Special Processing Unit (SPU); Joint
Petitioner, Stipulation on Damages; Influenza
v. (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
SECRETARY OF HEALTH AND (SIRVA); Parsonage Turner
HUMAN SERVICES, Syndrome
Respondent.
John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner.
Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
Dorsey, Chief Special Master:
On February 16, 2017, petitioner 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 from Parsonage Turner Syndrome
and a shoulder injury related to vaccine administration (“SIRVA”) as a result of a flu
vaccination received on October 23, 2015. Petition at 1; Stipulation, filed March 23,
2018, at ¶ 4. Petitioner further alleges that she received the vaccine in the United
States, she suffered the effects of the injury for more than six months, and there has
been no prior award or settlement of a civil action for damages as a result of her
condition. Petition at 1, 7; Stipulation at ¶¶ 2, 5. “Respondent denies that the influenza
immunization caused petitioner’s shoulder injury, Parsonage Turner Syndrome, or any
other injury or her current condition. ” Stipulation at ¶ 6.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National 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 March 23, 2018, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. The undersigned
finds the stipulation reasonable and adopts it as the decision of the Court in awarding
damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned
awards the following compensation:
A lump sum of $70,000.00 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 42 U.S.C. § 300aa-15(a). Id.
The undersigned approves 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/Nora Beth Dorsey
Nora Beth Dorsey
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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
KESHA PHELPS, )
)
Petitioner, )
) No. 17-229V
v. ) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. 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 vaccine,
which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).
2. Petitioner received an influenza immunization on October 23, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a shoulder injury and Parsonage Turner Syndrome
as a result of receiving the influenza vaccine.
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 the influenza immunization caused petitioner’s shoulder
injury, Parsonage Turner Syndrome, 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 a
lump sum payment of $70,000.00 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-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 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 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.
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12. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys’ fees, 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 influenza vaccination administered on or about
October 23, 2015, as alleged by petitioner in a petition for vaccine compensation filed on or
about February 16, 2017, in the United States Court of Federal Claims as petition No. 17-229V.
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.
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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 influenza vaccine caused petitioner’s shoulder
injury, Parsonage Turner Syndrome, 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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