Opinion

Wanner v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Jun 6, 2024
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-0515V

STEPHANIE WANNER, Chief Special Master Corcoran

Petitioner, Filed: May 7, 2024

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.

Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for

Respondent.

DECISION ON JOINT STIPULATION1

On January 11, 2021, Stephanie Wanner filed a petition for compensation under

the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the

“Vaccine Act”). On September 23, 2022, Petitioner filed an amended petition. Petitioner

alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”)

resulting from an influenza (“flu”) vaccine received on September 24, 2020. Amended

Petition at 1; Stipulation, filed May 6, 2024, at ¶¶ 2-4. Petitioner further alleges that the

vaccine was administered in the United States, she suffered the residual effects of her

injury for more than six months, and no lawsuits have been filed or settlements or awards

accepted by anyone, including Petitioner, due to her vaccine-related injury. Amended

Petition at ¶¶ 9-11; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner suffered the

onset of her alleged SIRVA within the Table timeframe; denies that the flu vaccine caused

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or

at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government

Act of 2002. 44 U.S.C. § 3501 note (2018) (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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.

§ 300aa (2018).

petitioner’s alleged shoulder injury or any other injury and further denies that her current

disabilities are a sequela of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on May 6, 2024, 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 $32,918.00 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 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

STEPHANIE WANNER,

Petitioner, No. 2 1-515V

Chief Special Master Corcoran

V. SPU

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

STTPULATION

The parties hereby stipu late to the fo llowing matters:

I. Petitioner, Stephanie Wanner, filed a petition for vaccine compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa- l O to 34 (the "Vaccine

Program"). The petition seeks compensation for injuries alleged ly related to petitioner' s receipt

of the influenza ("flu") vaccine, which vacci ne is contained in the Vaccine Injury Table (the

''Table"), 42 C.F. R. § I 00.3 (a).

2. Petitioner received a fiu vaccine on or about September 24, 2020.

3. The vaccine was admin istered within the Un ited States.

4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Adininistration

("S fR VA") as a consequence of the flu immunization she received on or about September 24,

2020, and further alleges that she suffered the residual effects of this injury 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 condition.

Page I of 5

6. Respondent denies th at petitioner suffered the onset of her al leged STRVA within the

Tab le timeframe; denies that the flu vaccine caused petitioner's al lcged shoulder injury or any

other inj ury and furth er denies that her current disabil iti es are a sequel a 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 thi s Stipulation.

8. As soon as practicable after an entry of judgment reflectin g a decision consistent with

the terms of th is Stipul ation, and after petiti oner has fi led an election to receive compensation

pursuant to 42 U.S.C. § 300aa-2 I (a)(I ), the Secretary of Health and Human Servi ces wi ll issue the

fo llowing vaccine compensati on payment:

A lump sum of $32,9 18.00, in the fo rm of a check pay able to petiti oner,

representing compensati on for all damages that woul d be available under 42 U.S.C.

§ 300aa-15(a) .

9. As soon as practicable after the entry of judgment on entitlement in thi s case, and after

petitioner has filed both a proper and timely election to receive compensati on pursuant to 42 U .S.C.

§ 300aa-2 I (a)( I), and an appl ication, the parti es w ill submit to furth er proceed ings before the

special master to award reasonable attorneys' fees and costs incurred in proceeding upon thi s

petition.

10. Petitioner and her attorn ey represent th at they have identifi ed to respo11dent all kn own

sources of payment fo r items or servi ces for w hich the Program is not primarily liab le under 42

U.S.C. § 300aa- I 5(g), including State compensation programs, insurance policies, Federal or State

health benefits programs (other than T itle XIX of the Social Security Act (42 U .S.C. § 1396 et

seq.)), or entit ies that provide health services on a prepaid basis.

Page 2 of 5

11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded

pursuant to paragraph 9 w ill be made in accord ance with 42 U.S.C. § 300aa- l 5(i), subject to the

avai labil ily of sufficient statutory fu nds.

12. The parties and their attorn eys further agree and stipulate that. except for any award

for attorn ey' s fees and litigation costs, and past unreimbursable expenses, the money provided

pursuant l o this Stipulation wi ll be used solely for the benefit of petitioner as contemplated by a

strict construction of 42 U.S.C. § 300aa- I 5(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa- I 5(g) and (h).

13. l n return for the payments described in paragraphs 8 and 9, petitioner, in her ind iv idual

capacity, and on behal f of her heirs, executors, administrators, successors, and assigns, does

forever irrevocably and unconditionally release, acqu it and discharge the U nited States and the

Secretary of Health and Human Services from any and all acti ons or causes of action (includ ing

agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever

k ind or nature) that have been brought, could have been brought, or could be timely brought in the

U nited States Court of Federal C laims, under the National V accine Injury Compensation Program,

42 U.S.C. § 300aa- IO 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 adm inistered on or about September 24, 2020,

as alleged by petitioner in a petition for vaccine compensation fi led on or about January 11 . 202 1

in the Un ited States Court of Federal C laims as petition No. 2 1-5 1SV.

14. If petitioner should die prior to entry of judgment, thi s agreement shall be vo idable

upon proper notice to the Court on behalf of either or both of the parties.

Page 3 of 5

15. If the special master fa ils to issue a decision in complete conform ity with the terms of

this Stipulation or if the Un ited States Court of Federal Claims fai ls 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 fu ll 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 th e award descri bed 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 Stipu lation 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 shoulder

injury or any other injury or any of her current disabilities.

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

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

EN D OF STIPULATION

Page 4 of 5

Respectfu Ily submitted,

PETITIONER:

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE

PETITIONER: OF THE ATTORNEY GENERAL:

/<.1nJtl. c.f-6/flJA. 4 fl~tk¼...Du:JJ£. --M -16Jd4.M\f..P eo a.J.M---

RONALD C. HOMER, ESQ. M,.8!,/l(i1.,; HEA TH ERL. PEARLMAN

Conway Homer, P.C. Deputy Director

16 Shawmut Street Torts Branch

Boston, MA 021 16 Civil Division

Te l: (6 17) 695-1990 U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washi ngton, DC 20044-0146

AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR

THE SECRETARY OF HEALTH AND RESPONDENT:

HUMAN SERVICES:

George R. Grimes - Digitally signed by George R.

Grlme1-S 14

kcJL~ (3 c{'-UV)~ ~

S14 Date: 2024.04.28 08:40:45 •04'00' k,,y ~ O ~ / \ L- f (! <U)..A./\f------

CDR GEORGE REED GRIMES, MD, MPH MA LLORI B. OPENCHOWSKI

Director, Division of Injury Trial Attorney

Compensation Programs Torts Branch, Civil Division

Health Systems Bureau U.S . Department of Justice

Health Resources and Services P.O. Box .146

Administration Benjamin Franklin Station

U.S. Department of Health Washington, D.C. 20044-0146

and Human Services Tel: (202) 305-0660

5600 Fishers Lane, 08W-25A mallori .b.openchowski@usdoj.gov

Rockville, MD 20857

Dated: o.s /ol, / zoZLf

Page 5 of 5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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