Morrow v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1964V
UNPUBLISHED
ALEXANDRA MORROW, Chief Special Master Corcoran
Petitioner, Filed: June 29, 2021
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)
Michael Avrim Firestone, Marvin Firestone, MD, JD and Associates, San Mateo, CA, for
petitioner.
Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
On December 18, 2017, Alexandra Morrow 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 administered on
January 24, 2017. Petition at 1-4; Stipulation, filed at June 29, 2021, ¶¶ 1-2. Petitioner
further alleges that the vaccine was administered within the United States, that she
suffered the residual effects of the SIRVA or more than six months, and that there has
been no prior award or settlement of a civil action for damages on her behalf as a result
of her condition. Petition at 1-4; Stipulation at ¶¶ 3-5. “Respondent denies that Petitioner’s
alleged left shoulder injury or any other injury or condition was caused by her receipt of
the flu vaccine. ” 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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 June 29, 2021, 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 $40,000.00 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 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
ALEXANDRA MORROW, )
)
Petitioner, ) No. 17-1964V
) Chief Special Master
V. ) Brian H. Corcoran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
I. Alexandra Morrow, petitioner, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 et seq. (the "Vaccine
Program"). The petition seeks compensation for injuries related to petitioner's receipt of the
influenza ("flu") vaccine, 1 which vaccine is contained in the Vaccine Injury Table (the "Table"),
42 C.F.R. § I 00.3(a).
2. Petitioner received a flu vaccination on January 24, 2017.
3-. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained a left shoulder injury related to vaccine
administration (SIRVA), as the result of her flu vaccination, and further alleges that she suffered
the residual effects of this alleged injury for more than six months.
1
Petitioner also asserts that she suffered a vaccine-related injury as the result of the receipt of a
pneumococcal polysaccharide vaccine (i.e., Pneumovax 23). Petition at I, 2. However, the
pneumococcal polysaccharide vaccine is not covered under the Vaccine Injury Compensation
Program. See 42 C.F.R. § 100.3(a)(XII) (Vaccine Injury Table, noting coverage for
pneumococcal conjugate vaccines).
5. Petitioner represents that there has been no prior award or settlement of a civi I action
for damages on her behalf as a result of her condition.
6. Respondent denies that petitioner's alleged left shoulder injury or any other injury or
condition, was caused by her receipt of the flu vaccine.
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)(I), 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-l 5(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)(I), 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.
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
expected to be made under any State compensation programs, insurance policies, Federal or
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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.
I I. 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 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-15(a) and (d), and subject to the conditions of 42 U.S.C.
§ 300aa- I 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 Cou1t 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 around January 24,
2017, as alleged by petitioner in a petition for vaccine compensation filed on or about December
18, 2017, in the United States Court of Federal Claims as petition No. 17-1964 V.
314. 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 paims fails to enter judgment in conformity with a
decision that is in complete confo1mity 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 pa1ties' respective positions as to liability and/or
amount of damages, and futther, 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 to develop a
shoulder injury or any other injury or condition.
18. All rights and obligations of peti~ioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
I
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Respectfully submitted,
PETITIONER:
G.9-ti.~~
ALEXANDRA MORROW
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
~~
1700 South El Camino Real
~~.AY:--:P<'~
HEATI-IER L. PEARLMAN
Aeling Deputy Director
Suite408 Torts Branch
San Mateo, CA 94402 Civil Division
'(650) 212-4900 U.S. Department of Justice
Michael@LawMDJD.com P. 0. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH A.l'\JD RESPONDENT:
HUMAN SERVICES:
fn~c~ l).b.Q.IULA lJN~
z:;~ ~ , ot(Sc-, tnS, A/Jh.J,tf~ 'ovt ~~ L-Pta ✓I~
TAMARA OVERBY ALTHEA WALKER DAVIS
Acting Director, Division of Injury Senior Trial Counsel
Compensation Programs Torts Branch
Healthcare 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, 08N 146B (202) 616-0515
Rockville, MD 20857 Althea.Davis@usdoj.gov
Dated: Ob k1 Jzoz., J
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