Burciago v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1975V
UNPUBLISHED
BRENDA BURCIAGO, Chief Special Master Corcoran
Petitioner,
v. Filed: January 18, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU); Joint
HUMAN SERVICES, Stipulation on Damages; Influenza
(Flu); Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA).
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On December 30, 2019, Brenda Burciago 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”) causally related to her receipt of an influenza (“flu”) vaccine on
January 19, 2018. Petition at 1.
On January 18, 2022, the parties filed the attached joint stipulation, which states
that a decision should be entered awarding compensation. ECF No. 35. I find the
stipulation reasonable and adopt it as my decision awarding damages, on the terms set
forth therein.
1 Because this unpublished opinion contains a reasoned explanation for the action in this case, I am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 opinion 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.
2National 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).
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
• A lump sum of $39,500.00, which represents compensation for pain
and suffering, in the form of a check payable to Petitioner.
• A lump sum of $2,223.43, which amount represents reimbursement of
a Medicaid lien for services rendered on behalf of Petitioner, in the
form of a check payable jointly to Petitioner and:
Department of Health Care Services
Recovery Branch – MS 4720
P.O. Box 997421
Sacramento, CA 95899-7421
DHCS Account Number C90680682A-VAC03
Petitioner agrees to endorse this payment to the Department of Health
Care Services.
These amounts represent compensation for all items of damages that would
be available under Section 15(a). Stipulation at ¶ 8.
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 the 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
)
BRENDA BURCIAGO,
)
)
Petitioner,
) No. 19-1975V
V.
) Chief Special Master Corcoran
SECRETARY OF HEALTH AND HUMAN ) ECF
SERVICES, ~
________________
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Brenda Burciaga, 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 the influenza vaccination in her left arm on January 19, 2018.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a shoulder injury which was caused-in-fact by the
influenza vaccine, 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 on her behalf as a result of her condition.
6. Respondent denies that petitioner's alleged left shoulder injury or any other injury or
condition was caused by her receipt of the influenza vaccine.
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 Secretary of Health and Human Services will issue
the following vaccine compensation payments:
a. A lump sum of $39,500.00 which represents compensation for pain and suffering, in
the form of a check payable to petitioner; and
b. A lump sum of$2,223.43, which amount represents reimbursement of a Medicaid lien
for services rendered on behalf of petitioner, in the form of a check payable jointly to
petitioner and
Department of Health Care Services
Recovery Branch - MS 4 720
P.O. Box 997421
Sacramento, CA 95899-7421
DHCS Account Number C90680682A-VAC03
Petitioner agrees to endorse this payment to the Department of Health Care Services.
These amounts represent 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)(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
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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. Payments made pursuant to paragraph 8 of this Stipulation, 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.
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-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, 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 vaccine administered on or about January 19, 2018,
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as alleged by petitioner in a petition for vaccine compensation filed on December 30, 2019, in
the United States Court of Federal Claims as petition No. 19-1975V.
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.
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 to suffer a
shoulder injury or her current disabilities, or any other injury or condition, or that petitioner
sustained 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 FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
~~~
VID J. CARNEY, E HEATHER L. PEARLMAN
Green & Schafle, LL Deputy Director
2332 South Broad St eet Torts Branch
Philadelphia, PA 19145 Civil Division
(215) 326-9256 U.S. Department of Justice
(267) 573-3025 Fax P.O. Box 146
Dcarney@greenlegalteam.com Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
Co~ H. ~
Va&-~, ~ c - , A/J/?.,v,,,,, 1p.y_¼~~.p~
CDR GEORGE REED GRIMES, MD, MI-I CAMILLE M. COLLETT
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
Administration Benjamin Franklin Station
U.S. Department of Health Washington, DC 20044-0146
and Human Services Tel: (202) 616-4098
5600 Fishers Lane, 08Nl46B Email: Camille.M.Collett@usdoj.gov
Rockville, MD 20857
Dated: Q 1 / 1B[w2 L
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