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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1415V
UNPUBLISHED
ELLEN MOSS, Chief Special Master Corcoran
Petitioner, Filed: March 16, 2022
v.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages; Influenza
HUMAN SERVICES, (Flu); Shoulder Injury Related to
Vaccine Administration (SIRVA)
Respondent.
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
James Vincent Lopez, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On September 16, 2019, Ellen Moss 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 a shoulder injury related to vaccine
administration (“SIRVA”) caused by an influenza (“flu”) vaccine administered on
November 28, 2017. Petition at 1; Stipulation, filed at March 16, 2022, ¶¶ 1, 2. Petitioner
further alleges that the vaccine was administered within the United States, that she
experienced residual effects of her injury for more than six months, and that there has
been no prior award or settlement of a civil action for damages as a result of her condition.
Petition at 1, 4; Stipulation at ¶¶ 3-5. 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 sequela of a vaccine-related
injury. Stipulation at ¶ 6.
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Nevertheless, on March 15, 2022, 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 $20,000.00 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). 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 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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IN fflE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
ELLEN MOSS,
Petitioner, No. 19-1415V
Chief Special Master Corcoran
V. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipuJate to the following matters:
1. Ellen Moss ("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 contained in the Vaccine Injury Table (the ''Table"), 42
C.F.R. § 100.3(a)
2. Petitioner received the flu vaccine on November 28, 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, or in the alternative, that her alleged
shoulder injury was caused by the vaccination. 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 on her behalf as a result of her alleged injury.
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 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)(l), the SecretaryofHeahh and Human Services will issue
the following vaccine compensation payment:
A lwnp sum of $20,000.00 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)(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 or can reasonably be
expected to be made under any State compensation programs, insurance policies, Federal or
State heahh benefits programs (other than Title XIX of the Social Security Act (42 U.S. C.
§ 1396 et seq.)), or by entities that provide heahh services on a pre-paid basis.
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11. Payment made pursuant to paragraph 8 and any am01mts awarded pursuant to
paragraph 9 of this Stipu1ation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject
to the availability of sufficient statutory ftm.ds.
12. The parties and their attorneys further agree and stipu1ate that, except for any award
for attorney's fees and litigation costs, and past unreimbu.rsable expenses, the money provided
pursuant to this Stipu1ation 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 cmcharge 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 November 28, 2017,
as alleged in a petition for vaccine compensation filed on or about September 16, 2019, in the
United States Court of Federal Claims as petition No. 19-1415V.
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.
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15. If the special master fails to issue a decision in complete conformity with the terms
ofthis 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 Chilcfuood 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 descnbed 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 injury or
any other injury or her current disabilities, or that petitioner suffered an injury contained in the
Vaccine Injury Table.
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:
ELLEN MOSS
ATTORNEY OF RECORD FOR AUTHORIZED REPRSENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
HEATHER L. PEARLMAN
Muller Brazil, LLP Deputy Director
715 Twining Road, Suite 08 Torts Branch
Dresher, PA 19025 Civil Division
215-885-1655 U.S. Department of Justice
bridget@myvaccinelawyer.com P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
``L(7e~
t)ALe t>. Mtskl.er, t>t+.Sc., MS,APR.N, for
CDR GEORGE REED GRIMES, MD, MPH JAMES V. LOPEZ
Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch, Civil Division
Health Systems Bureau U.S. Department of Justice
Health Resources and Services P.O. Box 146
Admirmtration Beajamin Franklin Station
U.S. Department of Health Washington, DC 20044-0146
and Hwnan Services Tel: (202) 616-365S
S600 F~hers Lane, 08N 146B Email: james.lopez@usdoj.gov
Rockville, MD 208S7
Dated: ol hs /Ufll.._
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