Draper v. Secretary of Health and Human Services

Sn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0819V
UNPUBLISHED
JEAN DRAPER, Chief Special Master Corcoran
Petitioner, Filed: June 14, 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)
Emily Beth Ashe, Anapol Weiss, Philadelphia, PA, for Petitioner.
Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION'
On June 4, 2019, Jean Draper filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, ef seqg.* (the “Vaccine
Act”). Petitioner alleges that she suffered a shoulder injury that was caused-in-fact by an
influenza (“flu”) vaccine she received on November 3, 2016. Petition at 1; Stipulation, filed
at June 14, 2022, Jf] 2-4. Petitioner further alleges that she experienced the residual
effects of this condition for more than six months. Petition at 7; Stipulation at J 4.
Respondent denies “that the vaccine caused petitioner’s alleged shoulder injury, or any
other injury; and denies that her current condition is a sequela of a vaccine-related injury.”
Stipulation at J] 6.
Nevertheless, on June 14, 2022, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. | find the stipulation
reasonable and adopt it as my decision awarding damages, on the terms set forth therein.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, | am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, | agree that the identified material fits within this definition, | 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).
Pursuant to the terms stated in the attached Stipulation, | award the following
compensation:
A lump sum of $40,000.00, in the form of a check payable to Petitioner.
Stipulation at J 8. This amount represents compensation for all items of damages
that would be available under Section 15(a). /d.
| 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.*
IT 1S 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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
JEAN DRAPER, )
)
Petitioner, )
) No. 19-819V
Vv. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Jean Draper (“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
of an 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 November 3, 2016.
3. The vaccine was administered within the United States.
4, Petitioner alleges that she sustained a shoulder injury that was caused-in-fact by the
flu vaccine. She further alleges that she experienced the residual effects of this condition 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 alleged injury.
6. Respondent denies that the vaccine caused petitioner’s alleged shoulder injury, or any
other injury; 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 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 $40,000.00 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-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 attorney’s fees and litigation costs, and past unreimbursable 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 November 3, 2016, as
identified in a petition for vaccine compensation filed on or about June 4, 2019, in the United
States Court of Federal Claims as petition No. 19-819V.
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 petitioner’s alleged shoulder
injury or any other injury or her current disabilities, or that petitioner suffered an injury
contained in the Vaccine Injury Table.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
Respectfully submitted,
PETITIONER:
A or AA
SAN DRAPER | os
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
EMILY B. ASHE HEATHER L. we SES a
ANAPOL WEISS Deputy Director
One Logan Square Torts Branch
130 North 18" Street Civil Division
Suite 1600
U.S. Department of Justice
Philadelphia, PA 19103 P.O. Box 146
(215) 735-8037 Benjamin Franklin Station
eashe@anapolweiss.com Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
George R. Digitally signed by George R,
Grimes -S14
Grimes -S14 Date: 2022.05.31 21:39:35 -0400"
CDR GEORGE REED GRIMES, MD, MPH 1AN R. MURPHY
Director, Division of Injury Tig 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 Humans Services Washington, DC 20044-0146
5600 Fishers Lane, 08N146B (202) 616-4264
Rockville, MD 20857 meghan.r.murphy(@usdoj.gov
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