Langer v. Secretary of Health and Human Services

Sn the Guited States Court of Federal Claims
Office of Special Masters
Filed: November 10, 2021
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DEBORAH LANGER * UNPUBLISHED
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Petitioner, * No. 17-984V
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V. * Special Master Gowen
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SECRETARY OF HEALTH * Stipulation for Award; Influenza (“flu”);
AND HUMAN SERVICES, * Shoulder Injury Related to Vaccine
* Administration (““SIRVA”).
Respondent. *
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John R. Howie, Howie Law, PC, Dallas, TX, for petitioner.
Althea W. Davis, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION ON STIPULATION!
On July 21, 2017, Deborah Langer (“petitioner”), filed a petition for compensation under
the National Vaccine Injury Program.” Petition (ECF No. 1). Petitioner alleges that she suffered
a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of receiving the
influenza (“flu”) vaccine on September 1, 2015. Jd.
On November 9, 2021, respondent filed a stipulation providing a decision should be
entered awarding compensation to petitioner. Stipulation (ECF No. 66). Respondent denies that
the vaccines are the cause of petitioner’s alleged injuries, or any other injury or her current
condition. /d. at | 6. Nevertheless, maintaining their respective positions, the parties now agree
' Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:
(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that
includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed redacted version of the
decision.” /d. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. /d.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
that the issues between them shall be settled and that a decision should be entered awarding the
compensation to the petitioner according to the terms of the stipulation attached hereto as
Appendix A. Id. at {7.
The stipulation provides:
a) A lump sum of $131,268.67 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).
Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with
the terms of the stipulation and this decision.
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
DEBORAH LANGER, )
)
Petitioner, ) No. 17-984V
) Special Master
v. ) Thomas L. Gowen
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Deborah Langer, petitioner, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 ef seg. (the “Vaccine
Program”). The petition seeks compensation for injuries related to petitioner’s receipt of the
influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”),
42 C.F.R. § 100.3(a).
2. Petitioner received a flu vaccination on September 1, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained a left shoulder injury related to vaccine
administration (SIRVA), as defined in the Table, within the Table time period following
administration of the flu vaccine, and further alleges that she suffered the residual effects of this
alleged 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 or significantly aggravated by her receipt of the flu vaccine, and further
denies that petitioner sustained a SIRVA Table 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)(1), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $131,268.67 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)(1), 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 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 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 unreimbursed 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 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 or around September
1, 2015, as alleged by petitioner in a petition for vaccine compensation filed on or about July 21,
2017, in the United States Court of Federal Claims as petition No. 17-984V.
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 flu vaccine caused or significantly aggravated
petitioner’s alleged shoulder injury or any other injury or condition.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
Respecttully submitted,
PE'TEEIONER:
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DEBORATL LANGER
ATTORNEY OF RECORD FOR
PETITIONER:
JOUN RK. HOWE, IR. ESQUIRE
Howie Law, PC.
260% Hibernia St.
Duihis, beaus 73204
(214) 622-6340
jhowic@howiclaw.net
AUTHORIZED REPRESENTATIVE OF
THE SECRETARY OF HEALTH AND
HUMAN SERVICES:
Dake Wtstlar, PN Se, APRN, fr
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Health Systems Bureau
Health Resources and Services
Administration
U.S. Department of Health
and Human Services
5600 Fishers Lane, O8N146B
Rockville, MD 20857
Dated: 4} loglzz,
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
aedounst Pees —
HEATHER 1. PHARLMAN
Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O, Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
hy Re dhn O Pes —_
ALTHEA WALKER DAVIS
Senior Trial Counsel
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 616-0515
Althea. Davis@usdoj.gov