Kiel v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0314V
UNPUBLISHED
GERALD KIEL, Chief Special Master Corcoran
Petitioner, Filed: February 10, 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)
Scott Rooney, Nemes Rooney, P.C., Farmington Hills, MI , for petitioner.
Glenn Alexander MacLeod, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON JOINT STIPULATION1
On March 1, 2018, Gerald Kiel 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 he suffered a left shoulder injury caused by the
influenza vaccination on October 23, 2015. Petition at ¶¶ 4, 17; Stipulation, filed Feb. 7,
2020, at ¶¶ 1-2, 4. Petitioner further alleges that he continues to suffer the residual
effects of his injury and that neither he nor any other party has filed a civil action or
accepted a settlement for his injury, alleged as vaccine caused. Petition at ¶¶ 15, 22-
23; Stipulation at ¶¶ 4-5. “Respondent denies petitioner sustained a Table SIRVA;
denies that the flu vaccine caused petitioner’s alleged left shoulder injuries, or any other
injury; and further denies that his current disabilities are 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Nevertheless, on February 7, 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 $55,000.00 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 UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
* ** * * * * * * * * * * * * * * * * * ** ** *
*
GERALD KIEL, *
*
Petitioner, *
*
v. * No. 18-314V (ECF)
* CHIEF SPECIAL MASTER
* BRIAN H. CORCORAN
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent *
***************** ********
STIPULATION
The parties hereby stipulate to the following matters:
l. 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 trivalent influenza
("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R.
§100.3(a).
2. Petitioner received the flu vaccine on or about October 23, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he suffered a left shoulder injury related to vaccine
administration (SIRVA), as a consequence of the flu immunization he received on or about
October 23, 2015, and further alleges that he suffered the residual effects of this injury for more
than six months.
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5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on his behalf as a result of his condition.
6. Respondent denies petitioner sustained a Table SIRVA; denies that the flu vaccine
caused petitioner's alleged left shoulder injuries, or any other injury; and further denies that his
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-21(a)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $55,000.00 which amount represents compensation for all elements of
damages that would be available to petitioner under 42 U.S.C. § 300aa-15(a), in the form
of a check payable to petitioner.
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)(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.
10. Petitioner and his 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 U.S.C. § 300aa-15(g), including State compensation programs, insurance policies,
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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.
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-l 5(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 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-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in his
individual capacity, and on behalf of his 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 October 23, 2015, as alleged by petitioner in a petition for vaccine compensation filed on
or about March 1, 2018, in the United States Court of Federal Claims as petition No. l 8-3 I 4V.
Page 3 of 5
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
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 Human Services that the flu vaccine caused petitioner's alleged left
shoulder injuries, or any other injury or any of his 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
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Respectfully submitted,
PETITIONER:
~!W
GERALD KIEL
ATTORNEY OF RECORD .FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
Nemes, Rooney P. .
26050 Orchard Lake Road
~ vr
Deputy Director
Torts Branch
t______
Suite 300 Civil Division
Fannington Hills, MI 48334 U.S. Department of Justice
Tel: (248) 442-3300 P. 0. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH AN:0 RESPONDENT:
HUMAN SERVICES:
TAM~a;;E~:~ rt~
Acting Director, Division of Injury
Compensation Programs Torts Branch, Civil Division
Healthcare Systems Bureau U.S. Department of Justice
Health Resources and Services Administration P.O. Box 146
U.S. Department of Health Benjamin Franklin Station
and Human Services Washington, D.C. 20044-0146
5600 Fishers Lane Tel: (202) 616-4122
Parklawn Building, Stop-08N l 46B
Rockville, MD 20857
Dated: i-[lf /U> __ _
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