Thomas v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1733V
UNPUBLISHED
KAREN THOMAS, Chief Special Master Corcoran
Petitioner, Filed: May 13, 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)
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
On November 8, 2018, Karen Thomas 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 her October 13, 2017 influneza (“flu”)
vaccination. Petition at 1; Stipulation, filed May 12, 2020, at ¶¶ 2, 4. Petitioner further
alleges that 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 ¶¶4, 27-29. “Respondent denies that petitioner sustained a
SIRVA Table injury; denies that the vaccine caused petitioner’s alleged shoulder injury,
or any other injury; and denies that her current condition is a sequelae 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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
2
National 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).
Nevertheless, on May 12, 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 $45,000.00 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 § 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
·- ,.·
IN THE lJNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
KAREN THOMAS,
Petitioner, No. I 8-l 733V
Chier Special Master C\)rcoran
V. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Karen Thomas ("petitioner"), filed a petition for vac.cinc 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. § 100.3(a)
2. Petitioner received a flu vaccine on Octoher 13, 2017.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained a shoulder injury related to vaccine administration
(''SIRVA") within the time period set forth in the Table, or in the alternative, that her alleged
shoulder injury was caused by the 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 petitioner sustained a SIRVA Table injury; denies that the
vaccine caused petitioner's alleged shoulder injury, or any other injury: and denies that her
current condition is a scquelae of a vaccine-related injury.
7. Maintaining their above-stated positions. the parties neve1thcless now agree that the
issues between them shall be ~ettled and that a decision should be entered awarding the
compe-nsation described in paragraph 8 of this Stipulation.
8. As soon as practicable after an entry of judgment rellecting a decision consistent with
the terms of this Stipulation, and after petitioner has liled 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 $45,000.00 in the form of a chec.k payable to petitioner. This amount
represents compensation for all damages that would be available under 42 U.S.C.
§ 300aa-l 5(a).
9. As soon as practicable after th<: entry of judgment on entitlement in this case, anJ after
petitioner has filed both a proper and timely election to receive compensation pursuant to 42
U.S.C. § 300aa-2l(a)(l), and an application, the patties will submit to further proceedings before
the special master to award reasonable attorneys· fee~ and costs incurred in proceeding upon this
petition.
I 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 ct seq.)), or by entities that provide health sc.·rvices on a pre-paid basis.
11. Payment made pursuant to paragraph 8 anJ 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 availabi I ity of sufficient statutory funds.
12. The parties and their attorneys fu1thcr agree and stipulate that, except for any award
for attorney's fees and litigation costs, and past unreimbursablc expenses, the money provided
pursuant to this Stipulation will be used solely for the benefit of petitionl'r as contemplated by a
strict construction of 42 U.S.C. § 3P0aa-l 5(a) and (d). and su~ject to the conditions of 42 U.S.C.
§ 300aa- l 5(g) and (h).
13. In return for the payments dcscrib<:-d in paragraphs 8 and 9, petitioner, in her
individual capacit)', 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 St'crctary of Health and Human St:rvices 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 Natiomil 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 tlti vaccination administered on October 13, 2017, as
alleged in a petition for vaccine compem,ation ti led on or about November 8, 2018, in the United
'
.)
States Co lilt of federal Claims as petition No. 18-1733 V.
14. If petitioner should die prior to entry ofjudgment, 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 Cou1t of Federal Claims fails 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 Iiabi lily and
damages claimed under the National Childhood Vaccine Injury Act of I 986. 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 \)thcr than is herein expressly stated
and clearly agreed to. The patties fu,ther agree and understand that the award d(:scrihed in this
Stipulation may reflect~ compromise of the parties' respective positions as to liability and/or
amount or damage:::, and fu1thcr, 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 injury or
any other injury or her current disahilitics, or that petitioner suf'ft.:n:d an injury contained in the
Vaccine Injury Table.
18. All rights and obligations of petitioner hereunder shall apply equally lo petitioner's
heirs. executors, administrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully subm ittcd,
PETlTIONER:
k~-~
KAREN THOMAS
-
ATTOR~EY OF RECORD FOR AUTHORlZED REPRli~SENT ATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
C~ ES L < - _ _
Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box i46
Benjamin Franklin Station
Washington, DC 20044-0146
Al THORIZED REPRESENTATIVE
1
ATTORNEY 01• RECORD FOR
OF THE SECRln'ARY OF HEAL TH RESPONDENT:
AND HUMAN SERVICES: ~ J_~J
wa.Ad_ :s:6~ 1 /J~
- ·~ ·-----------·---~ L . _
TAMARA OVERBY JENN d R L. ' ' NA UD
Acting Director, Division of Injury Trial /\Horney
Compensation Programs Torts Branch
I lcalthcare Systems Bureau Ci" ii Di\'ision
U. S. Department of I lealth and U. S. Dcpartrm:nl of .lust ice
Humans Services P.O. Box 146
5600 Fishers Lane Benjamin franklin Station
Parklawn Building, Mail Stop 08N1468 Washington, DC 20044-0146
Rockville. MD 20857 (202) 305-1586
Dated: _'ij. l"l...,{. W_ __
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