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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-567V
UNPUBLISHED
TRACY KILMARTIN, 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) Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA)
Matthew F. Belanger, Faraci Lange, LLP, Rochester, NY, for Petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On May 7, 2020, Tracy Kilmartin 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
September 18, 2018. Petition at 1; Stipulation, filed at March 15, 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 2, 5-6; Stipulation at ¶¶ 3-5. Respondent denies that Petitioner sustained a
Table SIRVA within the timeframe set forth in the Table; and denies that the flu
immunization caused or significantly aggravated Petitioner’s alleged shoulder injury
and/or any other 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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 $40,000.00 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.
2
THE UNITED ST ATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
TRACY KILMARTIN,
Petitioner,
V. No. 20-567V
Chief Special Master Brian H. Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES.
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
I. Tracy Kilmartin (.. 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 an influenza r·flu .. ) vaccine. which vaccine is contained in the Vaccine Injury Table (the
··Table.. ). 42 C.F.R. § I 00.3(a).
2. Petitioner received a flu vaccine on or about September 18.2018. in her left upper
extremity.
3. The vaccine was administered within the United States.
4. Petitioner alleges that the flu vaccine caused her to develop a left-sided shoulder
injury related to vaccine administration (.. SIRVA") and that she experienced 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 as a result of her condition.
6. Respondent denies that petitioner sustained a Table SIRVA within the timeframe set
forth in the Table; and denies that the flu immunization caused or significantly aggravated
petitioner·s alleged shoulder injury and/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-2l(a)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $40,000.00 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-l 5(a) for injuries allegedly related to petitioner·s receipt of the flu vaccine.
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-2 l (a)()), 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.
I 0. 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-l 5(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.
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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- l 5(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-l 5(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 and/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 v ay 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 September 18. 2018. as alleged by petitioner in a petition for vaccine compensation filed
on or about May 7. 2020. in the United States Court of Federal Claims as petition No. 20-567V.
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
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 shoulder
injury and/or any other injury.
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:
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TR.ACY Kit 1:-\RTIN
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ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: ~ OF THE ATTORNEY GENERAL:
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MATTHEW F. SELAN HE.-\ HIER L. PEARLMAN
FARACI LANG E, LLP Depuly Director
28 East Main Street. Suite I I 00 Torts Branch
Rochester. New York 1461-l- Civil Di\'ision
(585) 325-5150 U.S. Department of Justice
n1h: Lu1'. .! -.:r .1 1:1r.1 .: i.1. ,rn P.O. Box 146
Benjamin Franklin Station
Washington. DC :200-l--l--0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECOIID FOR
OF THE SECRETARY OF HE \L TH RESPO NDENT:
AND HUMAN SERVICES:
George R. Grimes Dig,tallys,gnedby Georgell.
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Grimes-S14
Date: 2022 02.25 11 01 •12 -os·oo· ~;:'rt~ L pc_ Ll.JJ\f'--..__
CDR GEORGE REED GRIMES. ~-10. MPH RYAN D. PYLES
Director. Division of Injury Senior Trial Attorney
Compensation Programs Torts Branch
Health Systems Bureau Civil Division
Health Resources and Services U.S. Department of Justice
Administration P.O. Box 1-l-6
U.S . Department of Health Benjamin Franklin Station
and Human Ser\'ices Washington. DC :2004-l--0 146
5600 Fishers Lane. 08N l-l-61:3 (202) 616-98-l-7
Rockville, MD 20857
Dated: o 3/1 .S lzao7_
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