DocketNumber: 20-632
Judges: Brian H. Corcoran
Filed Date: 6/17/2022
Status: Non-Precedential
Modified Date: 6/20/2022
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-0632V UNPUBLISHED ELIZABETH MARIE MERTENS, Chief Special Master Corcoran Petitioner, Filed: May 5, 2022 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND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) Douglas Lee Burdette, Burdette Law, Sahuarita, AZ, for Petitioner. Lara Ann Englund, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On May 21, 2020, Elizabeth Marie Mertens 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”), a defined Table injury, after receiving the influenza vaccine on October 24, 2017. Petition at 1, ¶¶ 3, 13; Stipulation, filed May 4, 2022, ¶¶ 1-2, 4. Petitioner further alleges that she received the vaccine in the United States, that she suffered the residual effects of her SIRVA for more than six months, and that neither she nor any other party has filed a civil case or received compensation for her SIRVA injury. Petition at ¶¶ 3, 11, 14; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner 1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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. 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). sustained a SIRVA Table injury; denies that the flu vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6. Nevertheless, on May 4, 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 $60,000.00 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 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ELIZABETH MARIE MERTENS, ) ) Petitioner, ) ) V. ) No. 20-632V ) Chief Special Master Brian Corcoran SECRETARY OF ) HEAL TH AND HUMAN SERVICES, ) ) Respondent. ) ____________________ ) STIPULATION The parties hereby stipulate to the following matters: l. Petitioner Elizabeth Marie Mertens ("petitioner") filed a petition for vaccine compensa'.:ion under the National Vaccine Jnjury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (the ·'Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitio.c.er's Teceipt 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 vaccine on or about October 24, 2017. 3. The vaccine was administered within the United States. 1,. 0 etit;oner alleges tJrnt she sustained a shoulder injury related to vaccine administration ("SIRVA.'') within the time period set forth in the Table following administration of the vaccine. She fur1her alleges that she experienced the residual effects of this condition for more than six months. ~;. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of her condition. ( 5. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu vaccir.e caused petitioner's alleged shoulder injury, or any other injury; and denies that her cuncr. : ~ondition is a sequelae of a vaccine-related injury. 7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues ·Jctween them shall be settled and that a decision should be entered awarding the compe:Gc.tion described in paragraph 8 of this Stipulation. f . As soon as practicable after an entry of judgment reflecting a decision consistent with the ten:m of this Stipulation, and after petitioner has filed an election to receive compensation pursua111 to 42 U.S.C. § 300aa-21(a)(l), the Secretary of Health and Human Services will issue the :foll (J .ving vaccine compensation payment: /. . li:mp sum of $60,000.00, in the fonn of a check payable to petitioner. This amount t:r-!prcsents compensation for all damages that would be available under 42 U.S.C. § ~00aa-15(a). ) . As soon as practicable after the entry of judgment on entitlement in this case, and after peti~ioi:f~ · ~i:1~; 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 spe<:i,tl master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition . ] n. Petitioner and her attorney represent that they have identified to respondent all knm,v;,. :curces 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 ;~ . . 3 ;:3.te health benefits programs ( other than Title XIX of the Social Security A ct (42 U.S C. ii :;s•6 et seq.)), or entities that provide health services on a pre-paid basis. 2 1 l . Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragnr>Jh 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the :1'ru.ability of sufficient statutory funds. ,:'. . •The parties and their attorneys further agree and stipulate that, except for any award for att.:Jme:.,s' fees and litigation costs and past unreimbursable expenses, the money provided pursuz.1·: i:c this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict w.1struction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S .C. § 300ari .. }5( 6 ) and (h). ! 3. In return for the payments described in paragraphs 8 and 9, petitioner, in her indivic. H ! capacity, and on behalf of her heirs, executors, administrators, successors or assigns, does fo ,~vr:r irrevocably and unconditionally release, acquit and discharge the United States and the Scc.. 1 ;t:iry of Health and Human Services from any and all actions or causes of action (inc 1ud :r g cgreements, judgments, claims, damages, loss of services, expenses and all demands of wh~tf•v,~r kind or nature) that have been brought, could have been brought, or could be timely brought m ': ,1e Court of Federal Claims, under the National Vaccine Injury Compensation Progrnn-,, L/; U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known 1) · ··11 !:t..nown, suspected or unsuspected personal injuries to or death of petitioner resulting from. 01 ;1llF.: g,ed to have resulted from, the flu vaccination administered on or about October 24, 20 i 'i, a' 1llf ~ed by petitioner in a petition for vaccine compensation filed on or about May 21. 2020: iii ·h~ United States Court of Federal Claims as petition No. 20-632V. : , L. .f petitioner should die prior to entry of judgment, this agreement shall be voidable upon pr::po: notice to the Court on behalf of either or both of the parties. 3 : .5 . lf the special master fails to issue a decision in complete conformity with the terms o.£' thi~ ~:t ipilation or if the Court of Federal Claims fails to enter judgment in conformity with a di:-( :~i: r. 1b :1.: is in complete conformity with the terms of this Stipulation, then the parties' se:i:tler 1r·nt ·md this Stipulation shall be voidable at the sole discretion of either party. t i This Stipulation expresses a full and complete negotiated settlement of liability and dam2.§ :., -1 :iimed under the National Childhood Vaccine Injury Act of 1986, as amended, except a~ o~h:, :· vise noted in paragraph 9 above. There is absolutely no agreement on the part of the pa:ties iie~~rn to make any payment or to do any act or thing other than is herein expressly stated and ch:~::"ly ,.,sreed to. The parties further agree and understand that the award described in this St~v.::.L.ti:r. :":.ay reflect a compromise of the parties' respective positions as to liability and/or a1:·1.•-'L;n i oi" ; ,,mages, and further, that a change in the nature of the injury or condition or in the itrn is o 1· r, :,; rq:,ensation sought, is not grounds to modify or revise this agreement. : 7 · ·l"lis Stipulation shall not be construed as an admission by the United States or the Sc.-::··: :-- ~- · ·-realth and Human Services that flu vaccine caused petitioner's alleged shoulder inju.1 j" , a .: , other injury or her current condition, or that petitioner suffered an injury contained in th i:: , , · ': : 1ii e lnjury Table. ·~ ,: .11 rights and obligations of petitioner hereunder shall apply equally to petitioner' s heii":, : · , r.u 1rs, administrators, successors, and/or assigns. END OF STIPULATION I I I I I I I 4 Respectfully submitted, PETITIONER: a~vfhS--(Y/uk~ ELIZ ETHMARIE MERTENS ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: , AJ.e~~ w~ HEATHER L. PEARLMAN 249 ain Ave S., Suite 107 #333 Deputy Director North Bend, WA 98045 Torts Branch (206) 890-8037 Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Digitally signed by George R. George R. Grimes-514 J- CsA« Date: 2022.04.0715:25:46 Grimes-S14 -04'00' ~W