Logan v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0666V
UNPUBLISHED
LARRY LOGAN, Chief Special Master Corcoran
Petitioner, Filed: July 14, 2021
v.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages;
HUMAN SERVICES, Pneumococcal Conjugate Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Renee Ja Gentry, The Law Office of Renee J. Gentry, Washington, DC, for Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On May 6, 2019, Larry Logan 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 right shoulder injury which caused pain in his
back, arm, and hand, later diagnosed as adhesive capsulitis, after receiving the Prevnar
13 vaccine3 on September 19, 2017.4 Petition at ¶¶ 6-8; Stipulation, filed at July 13, 2021,
¶¶ 1-2, 4. Petitioner further alleges that he received the vaccine in the United States and
that he suffered the residual effects of his injury for more than six months. Petition at ¶¶
6, 12; Stipulation at ¶¶ 3-4. “Respondent denies that [P]etitioner sustained a SIRVA Table
injury; denies that the Prevnar vaccine caused [P]etitioner’s alleged shoulder injury, or
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
3
Prevnar 13 is a pneumococcal conjugate vaccine manufactured by Pfizer, Inc.
https://www.pfizerpro.com/product/prevnar-13/adult (last visited July 14, 2021).
4
On this same date, Petitioner also received an influenza vaccine in his left deltoid. Exhibit 1
any other injury; and denies that his current condition is a sequelae of a vaccine-related
injury.” Stipulation at ¶ 6.
Nevertheless, on July 13, 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 $35,500.00 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 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. 5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5
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
)<
LARRY'LO.GAN, )
)
)·
)
) No.19-666V
v. ) Chief SpeciarMaster Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
t. Larry Logan (j)etitioner") 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 an injury allegedly related to petitioner's rece.ipt
of the pneumococcal con_Rlgate ("Prevnar") vaccine, which is contajned in the Vaccine Injury
Tab1e {t11e '•"Tab1e"), 42 C:F.R s100.3{a).
2. Petitioner received the Prevnar \laccine on September 19, 2017.
3: The vaccine was administered in the United States.
4. Petitioner alleges that as a result of receiving the Prevnar vaccine, he suffered a
Shoulder Injury Related to Vaccine Administration ("SIRVA") within the Table timeframe, or in
·the alternative, that the alleged shoukier injury was caused by the vaccine. He further alleges
that ·he suffered·the resitlmil effects of his alleged 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 as a result of ~ alleged condition.
6. Respondent den'ies that pefitioner sustained a STRV A Table injury; denies tlmt the
Prevnarvaccine causedpetitioner's alleged shoulder injury, or any other injury; and denies that
his current condition is a sequelae of a vaccine-related injury.
7. Maintaining their- above-stated positions, the parties nevertheless now agree that the
issues between them shall' fie 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 teTIIIS of this ·Stipu)ation, and after petitioner has fded 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 $35,500.00, in the form of a check payable to petitioner, which
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 pmsuant to
42 U.S.C. § 300aa-2l(a)(I) and an application, the parties will submit to further proceedings
before the spedal 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 polic~s, Federal or State
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health benefits programs (other than Title XJX of the Social Security Act (42 U.S.C. § 1396 et
seq.)), or entities that provide heakh services on a pre-pai:i basis.
11. Payment made .pur.suant to paragraph 8 :of .this Stipulation, and any amount. .awar.ded
pursuant to paragraph 9, w,ill be made .in .accordance wjtb 42 U.S.C. § 300aa-15(i), subje.c! .to the
availability of sufficient statutory funds.
12. The. parties aoo.the.u:. attorneys. furthe.i:. agree. and.stq:wJate that, except.for. any a.want
for attorneys' 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 paragraph 8, and any amount awarded
pursuant to paragraph 9, petitioner, in his individual capacity, and on behalf of his heirs,
executors, administrators, successors, or assigns, does forever irTevocably 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 W1Suspected personal
injuries to or death of petitioner resulting from, or a'lleged to have resulted from the Prevnar
vaccine administered on September 19, 2017, as aUeged in a Petition filed on May 6, 2019, in
the United States Court of Federal Claims as petition No. 19-666V.
14. If petitioner should die prior to entry of judgment, Um' agreement shall be voidable
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upon proper notice of the Court on behalf of either or both of the parties.
15. If the special master fa~ to issue a decision in complete conformity with the terms
ofthis 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 a~ed to. 'Fhe parties further agree and mtderstand that the award described in tlm
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 Stipuiation sha:fl not ·be construed as an admission by the United States or the
Secretary of Health and Human Services that the Prevnar vaccine caused petitioner's alleged
shoulder injury, or any other injury.
18. All rights and obligations of petitioner shall apply equally to petitioner's heirs,
executors, administrators, successors, and/or assigns.
END OF STIPULATfON
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Respectfully submitted.
PETITIONER:
ATrORNEYOFRECORDFOR AUTHORIZED REPRESENTATIVE
PETITIONER~ OF THE ATTORNEY GENERAL:
'HEATHER
ill~ ~&~
L. PEARLMAN
ffi c of Renee J. ve1ruo:.---- Deputy Director-
2020 Pennsylvania Ave .• N Torts Branch
Washington, DC, 20006 Civil Division
Ernail: renee@gentryesq.com U.S. Department of Justice
Tel: (202) 505-6435 P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OFTHESECRETARYOFHEALTH RESPONDENT:
AND HUMAN SERVICES:
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Pa&- ~ I ~ c - , ~ .t