Hailey v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1386V
UNPUBLISHED
LAURA HAILEY, Chief Special Master Corcoran
Petitioner, Filed: May 10, 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)
Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On October 14, 2020, Laura Hailey 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”) as a result of an influenza (“flu”) vaccine received on November
14, 2019. Petition at ¶¶ 5, 17, 19; Stipulation, filed May 9, 2022, at ¶¶ 2-4. Petitioner
further alleges that the vaccine was administered in the United States, her injury lasted
more than six months, and neither Petitioner nor any other party has ever brought an
action, or received compensation in the form of an award or settlement, for Petitioner’s
vaccine-related injuries. Petition at ¶¶ 5, 18, 21-22; Stipulation at ¶¶ 3-5. “Respondent
denies that petitioner sustained a SIRVA Table injury, denies that petitioner’s alleged
shoulder injury was caused-in-fact by the flu vaccine, and denies that the flu vaccine
caused petitioner any other injury or her current condition.” 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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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.
2
National 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 9, 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 $62,000.00 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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
LAUR/\ HAILEY. )
)
Petitioner. )
) No. 20- I 386V
V. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTII AND HUMAN )
SERVICES, )
)
Respondent. )
__________________ )
STIPULATION
The parties hereby stipulate to the following matters:
1. Laura Hailey. petitioner, filed a petition for vaccine compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. ** J00aa-10 to -34 (the "Vaccine Program"').
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 "Table'').
42 C.F.R. § I 00.J(a).
2. Petitioner received the flu vaccine on November I4.2019. 1
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered a right Shoulder Injury Related to Vaccine
Administration ("SIRV /")within the time period set forth in the Table. or, in the alternative,
that her right shoulder injury was cause-in-fact by the vaccination. and ftuther alleges that she
experienced the residual effects of her injury for more than six months.
' The vaccination record indicates that petitioner received the vaccine in her left deltoid.
Petitioner avers that she received the vaccine in her right deltoid.
DocuS1gn Envelope ID: 6E7 A87 E1-BD0E-4CB2-9CAC -A 19BO0E38FF4
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 sustained a SIRVA Table injury, denies that
petitioner's alleged shoulder injury was caused-in-fact by the flu vaccine, and denies that the flu
vaccine caused petitioner any other injury or her current condition.
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. J\.s 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-2l(a)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $62,000.00 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-l5(a).
9. As soon as practicable after the entry oCjudgment 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-2 l (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.
l 0. 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
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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 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 5(i), subject lo 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-l 5(a) and (d), and subject to the conditions of 42 U.S.C.
*300aa- l 5(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-l Oet 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 Ou vaccination administered on November 14. 2019.
as alleged by petitioner in a petition for vaccine compensation filed on or about October 14,
2020. in the Uni ted States Court of Federal Claims as petition No. 20-1386V.
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I4. If petitioner should die prior to entry of judgment, this agreement shall be voidable
upon proper notice to the Court on hehal f of either or both of the parties.
I 5. 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 fai ls to enter judgment in conformity with a
decision that is in complete conformity with the terms or 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 or 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 oCthe i1~ury or condition or in the
items of compensation sought, is not grounds to modify or revise this agreement.
l 7. This Stipulation shall not be construed as an admission by the United States or the
Secretary or I lcalth and Human Scrvi<.:cs that the nu va<.:cine caused petitioner's alleged shoulder
injury or any other injury.
18. All rights and obligat ions of' petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
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Uocu::;Ign t:nvelope IU: ot:7 A87t:1-l:3D0E-4CB2-9CAC-A 19BD0E38FF4
Respectfully submitted,
PETITIONER:
l , Docu$1gned by:
``1``~--
LAURA HAILEY
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITlON- OF THE ATTORNEY GENERAL:
.,,... .-✓
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````J...i\C'--
HEATHER L. PEARLMAN
Maglio hristopher & Toale Deputy Director
1325 om1h Avenue, Suite 1730 Torts Branch
Seattle, WA 98101 Civil Division
Tel: (888) 952-5042 U.S. Depa11ment of Justice
Email: jolins@mctlaw.com 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:
George R. Grimes -S14
Digitally signed by George R. Grimes
-s1 4
Date: 2022.04.18 15:41 :33 -04'00
Scv,o..-V\ c_ . °'Dvll f a.r,
~¼~Lfe...~
CDR GEORGE REED GRJMES, MD, MPH SARAH C. DUNCAN
Director, Division oflnjury Trial Attorney
Compensation Programs Torts Branch
Health Systems Bureau Civil Division
Health Resources and Services U.S. Department of Justice
Administration P.O. Box 146
U.S. Department of Health Benjamin Franklin Station
and Human Services Washington, DC 20044-0146
5600 Fishers Lane, 08NI46B Tel: (202) 514-9729
Rockville, MD 20857 Email: sarah.c.duncan@usdoj.gov
Dated: 6S lo ~It.cu.... (
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