Jensen v. Secretary of Health and Human Services ( 2022 )

Sn the Gnited States Court of Federal Clanns
OFFICE OF SPECIAL MASTERS
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MARY JENSEN, *
* No. 18-1458V
Petitioner, ** Special Master Christian J. Moran
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V. ** Filed: March 29, 2022
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SECRETARY OF HEALTH ** Stipulation; influenza (“‘flu’’) vaccine;
AND HUMAN SERVICES, ** SIRVA; shoulder injury.
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Respondent. **
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Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner;
Julia M. Collison, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION!
On March 29, 2022, the parties filed a joint stipulation concerning the
petition for compensation filed by Mary Jensen on September 21, 2018. Petitioner
alleged that the influenza (“flu’’) vaccine she received on December 12, 2017,
which is contained in the Vaccine Injury Table (the “Table’”), 42 C.F.R. §100.3(a),
caused her to suffer from a left shoulder injury related to vaccination
administration (“SIRVA”). Petitioner further alleges that she suffered the residual
effects of this injury for more than six months. 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.
! The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
Respondent denies petitioner sustained a shoulder injury as defined in the
Vaccine Injury Table and denies that the flu vaccine caused petitioner to suffer
from SIRVA or any other injury.
Nevertheless, the parties agree to the joint stipulation, attached hereto. The
undersigned finds said stipulation reasonable and adopts it as the decision of the
Court in awarding damages, on the terms set forth therein.
Damages awarded in that stipulation include:
A lump sum payment of $50,000.00 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).
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment according to this decision and the attached
stipulation.”
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MARY JENSEN,
Petitioner, No. 18-1458V
Special Master Moran
Vv. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Mary Jensen (“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 an injury allegedly related to petitioner’s receipt
of an influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the “Table’”), 42
C.E.R. § 100.3(a).
2. On December 12, 2017, petitioner received a flu vaccine.
3, The vaccine was administered in 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 alleged condition.
6, Respondent denies that petitioner sustained a shoulder injury as defined in the
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Vaccine Injury Table; 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 a
lump sum of $50,000.00 in the form of a check payable to petitioner. This lump sum 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 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 pre-paid basis.
11, | Payment made pursuant to paragraph 8 of this Stipulation, and any amount
awarded pursuant to paragraph 9, 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
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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 paragraph 8, and any amount awarded
pursuant to paragraph 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 vaccine
administered on December 12, 2017, as alleged in a Petition filed on September 21, 2018, in the
United States Court of Federal Claims as petition No. 18-1458V.
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 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
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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 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 shoulder
injury, or any other injury or her current condition.
18. All rights and obligations of petitioner shall apply equally to petitioner’s heirs,
executors, administrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully submitted,
PETITIONER:
PETITIONER:
Law Offices of Leah V. Durant, PLLC
4717 K: Street NW, Suite 900
Washington, DC:20006
' (202) 775-9200
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN ‘SERVICES:
George R.Grimes = : 1eareaeeter soot,
‘$14 Piemonte 13556-05100
CDR GEORGEREED GRIMES, MD, MPH
Director, Division of Injury
‘Compcnsution Programs |
Health. Systems Burtcau.
~ Health Resources and Services. .
U.S. Department of Health -
and Human Services
5600 Fishers Lane, 08N146B
‘Rockville; MDB.20857
Dated: : O3 ba hoz?
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AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
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HEATHER L. PEA
Deputy Director
‘Forts Branch
Civil Division —
U.S, Departmentof Justice
- P.O:-Box 146
Benjamin Franklin Station
Washinylon, DC 20044-0146 |
ATTORNEY OF RECORD FOR
RESPONDENT:
Wa HM (otbrenr
ba Deon LBeoctv~_
JULIA M, COLLISON
Trial Anomey
. Civil Division.
U.S: Department of Justice
P.O. Box. 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 305-0102
julia. coHison@usdoj.gov