# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: January 31, 2020

* * * * * * * * * * * * * * * MARGARET MITCHELL * No. 18

- 892V

a lso known as MARGARET L. * CHAPMAN

- MITCHELL

, * * Petitioner, * Special Master Sanders

*

v. *

* SECRETARY OF HEALTH * Stipu lation for Award; Influenza ( “ flu ” ) AND HUMAN SERVICES, * Vaccine; Shoulder injury Related to

* Vaccination ( “ SIRVA ” ) Respondent. * * * * * * * * * * * * * * * * Kathleen M. Loucks

, Lommen Abdo Law Firm , Minneapolis, MN, for Petitioner. Darryl R. Wishard

, Unit ed States Department of Justice, Washington, DC, for Respondent.

DECISION 1

On June 22 , 201 8

, Margaret Mitchell (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300a a

- 10 to

- 34 (2012); Pet. at 1, ECF No. 1. Petitioner alleged that the influenza (“flu”) vaccine she received on December 8 , 201 6 , caused her to suffer a shoulder injury related to vaccine administration ( “ SIR VA ” )

. See Stip. at 1, ECF No. 35; Pet. at 1. Petitioner further alleged that she experienced the residual effects of her injury for more than six months. Stip. at 1.

On January 29 , 2020, the parties filed a stipulation in which they state that a decision should be entered awarding compensation to Petitioner. Id. at 2. Respondent denies that the flu vaccine caused Petitioner’s alleged SIRVA , or any other injury. Id. at 1. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. I find the stipulation reasonable and adopt it as the decision of the Court in awa rding damages, on the terms set forth therein.

1 This decision shall be posted 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), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa

- 12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the requirements of that provision, such material will be deleted from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

– 660, 100 Stat. 3755.2

The parties stipulate that Petitioner shall receive the following compensation:

A lump sum of $25,000.00 in the form of a check paya ble to [P] etitioner. This amount represents compensation for all damages, including pain and suffering, lost earnings, and past unreimbursable expenses that would be available under 42 U.S.C. § 300aa

- 15(a).

Id.

I approve the requested amount for Petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation

. 3

IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice renouncing the right to seek review.1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

___________________________________ ) MARGARET MITCHELL ) also known as MARGARET L. ) CHAPMAN

- MITCHELL, ) ) Petitioner, ) No. 18

- 892V ECF )

v. ) Special Master Sanders ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. )

___________________________________ )

STIPULATION

The parties hereby stipulate to the following matters:

1. Petitioner Margaret Mitchell (“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 re lated to

petitioner’s receipt of a n influenza (“ flu ” ) vaccine, which vaccine is contained in the Vaccine

Injury Table (the “Table”), 42 C.F.R. § 100.3(a).

2. Petitioner received h er flu immunization on December 8, 2016

.

3. The vaccine was administered within the United States.

4. Petitioner alleges that s he suffered a shoulder injury related to vaccine administration

(“SIRVA”) within the time period set forth in the Table , that her alleged shoulder condition is

actually caused by the vaccine, and furt her alleges that s he experienced the r esidual effects of her

injur y for more than six months. Case 1:18-vv-00892-UNJ Document 38 Filed 01/29/20 Page 1 of 52 5. Petitioner represents that there has been no prior award or settlement of a civil action

for damages as a result of her condition.

6. Respondent denies tha t petitioner sustained a SIRVA Table injury and denies that

petitioner ’s alleged SIRVA and its residual effects were caused

- in

- fact by her flu vaccine.

Respondent further denies that the flu vaccine caused petitioner any other injury or her current

condit ion.

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 soo n 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)(1), the Secretary of Health and Human Se rvices will issue

the following vaccine compensation payment:

A lump sum of $ 2 5, 0 0 0 .00 in the form of a check payable to petitioner. This amount represents compensation for all damages

, including pain and suffering, lost earnings, and past unreimbursable
expenses 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 pursuant to 42

U. S.C. § 300aa

- 21(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 h er attorney represent that th ey 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, Case 1:18-vv-00892-UNJ Document 38 Filed 01/29/20 Page 2 of 53 Federal or State health benefits pro grams (other than Title XIX of the Social Security Act (42

U.S.C. § 1396 et seq.)), or entities that provide health services on a pre

- paid basis.

11. 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 unreimbursable 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

- 15(g) and (h).

13. In return for the payments described in paragraphs 8 and 9, petitioner, in h er

individual capacity, and on behalf of h er heirs, executors, administrators, successors or assigns,

does forever irrevocably and unconditionally release, ac quit 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 u nknown, suspected or unsuspected personal injuries to or death of petitioner resulting

from, or allege d to have resulted from, the flu vaccinatio n administered on December 8, 2016, as

alleged by peti tioner in her petition fo r vaccine compensation filed on J une 22 , 2018

, in the

United States Court of Federal Claims as petition No. 18

- 892 V

. Case 1:18-vv-00892-UNJ Document 38 Filed 01/29/20 Page 3 of 54 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.

1 5. If the special master fails to issue a decision in complete conformity with the terms

of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a

decision that is in complete conformity with the terms of this Stip ulation, 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 Va ccine 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 parties’ respective positions as to liability and/or

amount of damages, and further, that a change in the nature of the injury or co ndition 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 vaccination cau sed petitioner to suffer a

shoulder injury or any other injury.

18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s

heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION / / / / / / Case 1:18-vv-00892-UNJ Document 38 Filed 01/29/20 Page 4 of 5Respectfully submitted,

PETITIONER:

# ~

ATTORNEY OF RECORD FOR PETITIONER:

KATHLE ~ Lommen Abdo, P.A. I 000 International Centre 920 Second A venue South Minneapolis, MN 55402 (612) 339-8131

AUTHORIZED REPRESENT ATIVF, OF THE SECRETARY OF HEALTH AND HUMAN SERVICES:

TAMARA OVERBY Acting Director

, Division of Injury Compensation Programs Healthcare Systems Bureau U.S. Department of Health

and Human Services 5600 Fishers Lane Parklawn Building, Mail Stop 08-N 146B Rockville, MD 20857

Dated:

5 AUTHORIZED REPRESENTATIVE 0 THE ATTORNEY GENERAL:

. ARlNE E. REEVES Deputy Director Torts Branch Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

ATTORNEY OF RECORD FOR RESPONDENT:

# ~ DARRYL R. WISHARD Senior Trial Attorney Torts Branch Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 (202) 616-4357 Case 1:18-vv-00892-UNJ Document 38 Filed 01/29/20 Page 5 of 5