Fagan v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1244V
UNPUBLISHED
TRISTIN FAGAN, Chief Special Master Corcoran
Petitioner, Filed: January 14, 2020
v.
SECRETARY OF HEALTH AND Special Processing Unit (SPU); Joint
HUMAN SERVICES, Stipulation on Damages; Influenza
(Flu) Vaccine; Shoulder Injury
Respondent. Related to Vaccine Administration
(SIRVA)
Summer Pope Abel and Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC,
Washington, DC, for petitioner.
Gabrielle Manganiello Fielding, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON JOINT STIPULATION1
On August 20, 2018, Tristin Fagan 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 injuries, including a SIRVA, resulting
from adverse effects of a flu vaccine she received on September 21, 2017. Petition at
1; Stipulation, filed January 14, 2020, at ¶¶ 1, 2. Petitioner further alleges she received
the influenza vaccination in the United States, that she suffered the residual effects of
her injuries for more than six months, and that neither she nor any other person has
filed a civil action or received compensation for her injuries. Petition at ¶¶ 1, 11-12;
Stipulation at ¶¶ 3-5. “Respondent denies that petitioner suffered the onset of her
alleged SIRVA within the Table timeframe; denies that the flu vaccine caused
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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 ruling 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
petitioner’s alleged SIRVA or any other injury and further denies that her current
disabilities are a sequela of a vaccine-related injury.” Stipulation at ¶ 6.
Nevertheless, on January 14, 2020, 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 $53,500.00 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 § 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 the 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
Case 1:18-vv-01244-UNJ Document 29 Filed 01/14/20 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
TRISTIN FAGAN,
Petitioner, No. 18-1244V
Chief Special Master Corcoran
V. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Tristin Fagan, 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 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 September 21, 2017.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration
("SIRVA") as a consequence of the flu immunization she received on or about September 21,
2017, and further alleges that she suffered the residual effects of this 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.
Page 1 of 5
Case 1:18-vv-01244-UNJ Document 29 Filed 01/14/20 Page 2 of 5
6. Respondent denies that petitioner suffered the onset of her alleged SIRVA within the
Table timeframe; denies that the flu vaccine caused petitioner's alleged SIRVA or any other injury
and further denies that her current disabilities are 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-2 l(a)(l), the Secretary of Health and Human Services will issue the
following vaccine compensation payment:
A lump sum of $53,500.00, in the form of a check payable to petitioner,
representing compensation for all damages that would be available under 42 U.S.C.
§ 300aa~l5(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-2 l (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 they have identified to respondent all known
sources of payment for items or services for which the Program is not primarily liable under 42
lJ .S.C. § 300aa-l 5(g), including 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 entities that provide health services on a prepaid basis.
Page 2 of 5
Case 1:18-vv-01244-UNJ Document 29 Filed 01/14/20 Page 3 of 5
11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded
pursuant to paragraph 9 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, 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, and 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
United States 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 about September 21, 2017,
as alleged by petitioner in a petition for vaccine compensation filed on or about August 20, 2018
in the United States Court of Federal Claims as petition No. 18-1244V.
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 United States Court of Federal Claims fails to enter judgment in
Page 3 of 5
Case 1:18-vv-01244-UNJ Document 29 Filed 01/14/20 Page 4 of 5
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 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 Hwnan Services that the flu vaccine caused petitioner's alleged SIRVA
or any other injury or any of her current disabilities.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
Page 4 of 5
Case 1:18-vv-01244-UNJ Document 29 Filed 01/14/20 Page 5 of 5
Respectfully submitted,
PE~ 4/
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
ATTORNEY GENERAL:
~~ fA_
SffMMER P. ABEL ARINE E. REEVES
LAW OFFICES OF LEAH V. DURANT, PLLC Director
1717 K Street, NW Torts Branch
Suite 900 Civil Division
Washington, D.C. 20006 U.S. Department of Justice
(202) 775-9200 P. 0. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH AND RESPONDENT:
HUMAN SERVICES:
TAMARA OVERBY
~c
~
R-c\ d
~ a\::n·i \\-e M . fvi~
Acting Director, Division of ·1r-ssi s+a~t-1 :>i~t 01" ·
Injury Compensation Programs (DlCP) Torts Branch, Civil Division
Healthcare Systems Bureau U.S. Department of Justice
U.S. Department of Health P.O. Box 146
and Human Services Benjamin Franklin Station
5600 Fishers Lane Washington, D.C. 20044-0146
Parklawn Building, Stop-08N146B Tel: (202) Co I " .. 4-1, ~
Rockville, MD 20857
Dated: 1..\-~V) 21)2'I)
Page 5 of 5