Gustafson v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-810V
UNPUBLISHED
LYNN GUSTAFSON, Chief Special Master Corcoran
Petitioner, Filed: May 6, 2022
v.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages; Tetanus
HUMAN SERVICES, Diphtheria acellular Pertussis (Tdap)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Jessica Olins, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.
Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On July 2, 2020, Lynn Gustafson 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 Table injury – a Shoulder Injury
Related to Vaccine Administration (“SIRVA”) – as a result of a tetanus diphtheria acellular
pertussis (“Tdap”) vaccination on February 27, 2019. Petition at ¶¶ 1, 21; Stipulation, filed
May 5, 2022, at ¶¶ 1-2, 4. Petitioner further alleges the vaccine was administered within
the United States, that she suffered the residual effects of her injury for more than six
months, and that there has been no prior award or settlement of a civil action on her
behalf as a result of her injury. Stipulation at ¶¶ 3-5; see Petition at ¶¶ 1, 23, 26-27.
“Respondent denies that [P]etitioner sustained a SIRVA Table injury; denies that the
vaccine caused [P]etitioner’s alleged left shoulder injury or any other injury, and denies
that her current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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).
Nevertheless, on May 5, 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 $25,500.00 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
LYNN GUSTAFSON,
Petitioner, No. 20-810V
Chief Special Master Corcoran
V. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
I. Lynn Gustafson ("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
or 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 Tdap vaccine on February 27, 2019.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she sustained a left shoulder i[ljury related to vaccination
administration ("SIRVA") within the time period set forth in the Table following administration
of the Tdap vaccine , or in the alternative, that her alleged shoulder i11jury was caused by the
Tdap vaccine. She further alleges that she experienced the residual effects of this alleged it~w-y
for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
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for damages on her behalf as a result of her alleged it~ury or condition.
6. Respondent denies that petitioner sustained a SIRVA Table i11jury; denies that the
vaccine caused petitioner's alleged left shoulder injury or any other iqjury, and denies that her
current condition is a sequela 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 or this Stipulation.
8. As soon as practicable after an ent1y of judgment reflecting a decision consistent with
the terms of this Stipulation, and after petitioner has filed an election to rccei\·c compensation
pursuant to 42 U.S.C. § 300aa-21(a)(I). the Secretary of Health and lluman Services will issue
the following vaccine compensation payment:
A lump sum of $25.500.00 in the form of a check payable to petitioner. This
ammmt represents compensation tor all damages that would be available w1der 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 pw-suant 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 th.is petition.
10. Petitioner and her attorney represent that compensation to be provided pw-suant 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.
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§ 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 will be made in accordance with 42 U.S. C. § 300aa-
15(i), su~ject 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 of42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of42 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 I Iuman 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 Colll't of Federal Claims, under the National Vaccine h~ury 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 i11juries to or death of petitioner resulting
from, or alleged to have resulted from, the Tdap vaccination administered on February 27, 2019,
as alleged by petitioner in a petition for vaccine compensation filed on or about July 2, 2020, in
the United States Court of Federal Claims as petition No. 20-81 0V.
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 .
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15. If the special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the Comt 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 /\ct 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 :m·ard described in this
Stipulation may reflect a compromise of the parties' respective positions as to liability and/or
amount or damages. and further, that a change in the nature of the i11jury 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 I Tuman Services that the Tdap vaccine caused petitioner's alleged iqjury
or any other injury or her current condition, or that petitioner suffered an injury contained in the
Vaccine Ii~ury Table.
18. All rights and obligations of petitioner herew1der shall apply equally to petitioner's
heirs, executors, administrators, successors. and/or assigns.
END OF STIPULATION
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Rcspectfully submitted,
PETITIONER:
ATTORNEY OF RECORD A UTH ORI ZED REPRESENTATIVE
FOR PETJTIONER: OF THE ATTORNEY GENERAL:
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.JESS(c/ OLINS, ESQ. HEATHER L. PEARLMAN
Magi~ Christopher & Toale Law Firm Deputy Director
1015 15th St NW, Suite 1125 Torts Branch
Washin1:,rton, D.C. 20005 Civil Division
888-952-5242 U.S. Department of Justice
jolins e, mctlaw.com P.O. Box 146
Bc1~amin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEAL TH RESPONDENT:
AND HUMAN SERVICES:
George R. Grimes - Digitally signed by George R.
Grimes -514
S14 Date: 2022.04.13 04:57:34 -04'00'
CDR GEORGE REED GRIMES, MD, MPH
Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch
I Iealthcare System Bureau Civil Division
Health Resources and Services U.S. Department of Justice
Administration P.O . Box 146
U.S. Department of Health Be1~jamin Franklin Station
and Human Services Washington, DC 20044-0146
5600 Fishers Lane, 08N 146B 202-616-4179
Rockville , MD 20857 alexa.roggenkamp@ usdoj.gov
Dated: _s_ /