Fagan v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-963V
ELIZABETH FAGAN, Chief Special Master Corcoran
Petitioner, Filed: November 13, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.
Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On February 19, 2021, Elizabeth Fagan 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 a tetanus, diphtheria, and acellular pertussis (“Tdap”)
vaccine administered on July 25, 2020. Amended Petition at 1; Stipulation, filed at
November 9, 2023, ¶¶ 1-4. Petitioner further alleges that the vaccine was administered
within the United States, that she experienced the residual effects of her condition for
more than six months, and that there has been no prior award or settlement of a civil
action for damages on her behalf as a result of her condition. Amended Petition at 6;
Stipulation at ¶¶ 3-5. Respondent denies that Petitioner sustained a SIRVA Table injury;
denies that the flu 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. Stipulation
at ¶ 6.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (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 (2018).
Nevertheless, on November 9, 2023, 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 $17,500.00 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 THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
ELIZABETH FAGAN,
Petitioner,
v. No. 21-963V
Chief Special Master Brian H. Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
l. Elizabeth Fagan {"petitioner") filed an amended petition for vaccine
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10
to -34 (the "Vaccine Program"). 1 The amended petition seeks compensation for injuries
allegedly related to petitioner's receipt of a tetanus, diphtheria, and acellular pertussis ("Tdap")
vaccine, which is a vaccine contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. §
100.3 (a).
2. Petitioner received the subject vaccination on July 25, 2020.
3. The vaccination 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 following administration of the vaccine.
1 The amended petition filed July 1, 2021, supersedes the initial petition timely filed on February
19, 2021.
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 condition.
6. Respondent denies that petitioner sustained a SlRVA Table injury; denies that the flu
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-2l(a)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of$17,500.00 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-2l(a)(I), 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 compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
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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 of this Stipulation and any amounts awarded
pursuant to paragraph 9 of this Stipulation wilt 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-l 5(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 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-l Oet 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 Tdap vaccination administered on July 25, 2020, as
alleged by petitioner in petition filed on February 19, 2021, and in an amended petition for
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vaccine compensation filed on or about July I, 2021, in the United States Court of Federal
Claims as petition No. 21-0963V.
14. If petitioner should die prior to entry ofjudgment, 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 tenns
of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity with a
decision that is in complete conformity with the tenns 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.
J7. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the Tdap vaccine caused petitioner's alleged
shoulder injury or any other injury or her current condition, 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:
ATTORNEY OF RECORD AUTHORIZED REPRESENTATIVE
FOR PETITIONER: OF THE ATTORNEY GENERAL:
~ ~ QeJJ.('A_......,
J~ HEATHER L. PEARLMAN
Jeffrey S. Pop & Associates Deputy Director
9150 Wilshire Blvd, Suite241 Torts Branch
Beverly Hills, CA 90212 Civil Division
Tel· (310) 273-5462 U.S. Department of Justice
Jpop@poplawyer.com P.O. Box 146
Benjamin Franklin Station
Washington. DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OFTIIE SECRETARY OF HEALTH RESPONDENT:
ANO HUMAN SERVICES:
Henry P. =..,.....,.
by Mcmillan -SS ~._:.:::;•
CDR GEORGE GRIMES, MO, MPH
Director, Division of Injury
tamaJa 1lKrcf6
AMANDA PASClufO
Trial Attorney
Compensation Programs Torts Branch
Health Systems Bureau Civil Division
Health Resources and Services U.S. Department ofJustice
Administration P.O. Box 146
U.S. Department of Health Benjamin Franklin Station
and Human Services Washington; DC 20044-0146
5600 Fishers Lane, 08W-2SA Tel: (202) 616-4847
Rockville, MD 20857 Email: amanda.y.pasciuto@usdoj.gov
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