Dischinger v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-187V
Filed: September 3, 2019
UNPUBLISHED
MARY DISCHINGER,
Petitioner,
v. Special Processing Unit (SPU); Joint
Stipulation on Damages; Influenza
SECRETARY OF HEALTH AND (Flu) Vaccine; Shoulder Injury
HUMAN SERVICES, Related to Vaccine Administration
(SIRVA)
Respondent.
Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On February 6, 2018, petitioner 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”) following receipt of an influenza (“flu”) vaccine. Petition at 1;
Stipulation, filed August 30, 2019, at ¶¶ 1, 4. Petitioner further alleges that the vaccine
was administered within the United States, that she suffered the adverse 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 on her behalf as a result of her condition. Petition at 8;
Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused petitioner to
suffer from a left shoulder injury or any other injury or her current condition.” Stipulation
at ¶ 6.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Nevertheless, on August 30, 2019, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. The undersigned
finds the stipulation reasonable and adopts it as the decision of the Court in awarding
damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned
awards the following compensation:
A lump sum of $80,000.00 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 § 15(a). Id.
The undersigned approves 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/Nora Beth Dorsey
Nora Beth Dorsey
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 TllE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
) I
MARY DISCHINGER, )
)
Petitioner, )
) No. l8-187V
v. ) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND }
HUMAN SERVICES, )
)
Respondent. )
S'.[IPULATION
The parties hereby stipulate to the following matters:
1. Mary Dischinger. petitioner, filed a iretition for vaccine comp~nsation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to ~34 (the "Vaccine
Program 1'). The petition seeks compensation for injuries allegedly related to petitioner's receipt
of an_ influenza (''flu'') vaccine, which vaccine is contained in the Vaccine Injury Table (the
"Tableil), 42 C.F.R. § I00.3 (a).
2. Petitioner received the flu vaccine on September 9, 2015.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered from a left shoulder injury as a result of receiving
the flu vaccine.
5. Petitioner represents 1hat thtre has been no prior award or settlement of a c.i vU action
for daroages on her behalf as a result of her condition.
6. Respondent denies that the flu vaccine caused petitioner to suffer from a lell shoulder
injury or any othel" injury or her cu~rent condition,
7. Maintaining their above-stated positions. the parties nevertheless now agree that the
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issues between them shall be settled and that a decision should be entered awarding th~
compensation described in paragraph 8 of this Stipulation.
8. As soon as practicable after an entry of judgment reflecting a. decision consistent with
the t.enns of this Stipulation. and after petitioner has filed an election to receive compmsation
pursuant to 42 U.S.C. § 300aa.~2t(a)(l)1 the Secretary of Health and Human Services •.-,rill issue
the following vaccine compensation payment:
A lump sum of $80,000.00 in the fbnn of a check payable to petitioner. This
amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-lS(a).
9. As soon as practicable after the entry of judgment on entitlement in this cai;e, and after
petitioner has filed both a proper and timely election to receive compensation pursuant to
42 U.$.C. § 300aa-2l(a)(l), and an a1)plication, the parties will submit to further proceedings
before the special master to award reasonable attorneys' fees and costs incurred in proceeding
upon this petition.
l O. 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- l S{g), to the extent that payment has been made or can reas1 mably 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 pn,-paid basis.
11. Payment 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• .
l S(i)t subject to the avai Iability of sufficient statutory funds..
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12. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys• fees and litigation costs, and past unreimbursed expenses. the money provided
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pursuant to this Stipulation will be used solely for the benefit of petitioner as contemple.ted by a
sttict 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 ca.pacity, 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 0 et seq., on account of, or in any way growing out of, any and all
known or unknown, suspected or unsuspected person.al injuries to or death of petitionl)r resulting
from, or alleged to ha.ve resulted from, the flu vaccination administered on September 9, 2015, as
alleged by petitioner in a petition for vaccine compensation filed on or about Februar,; 6, 2018,
in the United States Court of Federal Claims as petition No. 18-187V.
14. If petitioner should die prior to entry ofjudgment, this agreement shaJl 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 conforn1ity 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 pa.rty.
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16. This Stipulation ex:presses a full and complete negotiated settlement of liability and
· damages claimed under the National Clhildhood Vaccine Injury Act of 1986, as am~nded, 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 ts herein expressly stated
. and clearly a.greed 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 injuryo.r condition er in the
items of compensation sought. is not grounds to modify or revise this agreement.
17. This Stipulation shal1 not be construed as an admission by the United Stat~s or the
Secretary of Health and Human Services that the flu vaccine caused petitioner to have a left
shoulder injury or any other injury or her current condition.
18. All rights and obligation5 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, ·
J ,~--~
.PETITIONER:
11 ~ I
~CH~FSR
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTA JIVE
PETITIONER! OF THE ATTORNEY GENERAL:
~cJ/-~ ·~ ``
CA INE E. REEVES
Muller 8razil LLP Deputy Director
715 Twining Road, Suite 208 Torts Branch, Civil Division
Dresher, PA 19025 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE AlTORNEY OF RECORD FOR
OFTHESECRETARYOFHEALTH RESPONDENT:
AND HUMAN SERVICES:
TAMARA OVERBY, M.~
Acting Director, Divisioo of Injury
``
Trial Attorney
Compensation Programs Torts Branch, Civil Division
Healthcare Systems Bureau U.S. Department of Justice
U.S. Department of Health · P.O. Box 14o
and Human Services Benjamin Franklin Station
5600 Fishers Lane Washington. DC 20044-0146
Parklawn Building, Mail Stop 08Nl46B Tel: (202) 616-3665
Rockville. MD 20857
Dated: 1 /-:;o /1 q.
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