VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-01339 Package ID: USCOURTS-cofc-1_17-vv-01339 Petitioner: Geraldine Abel Filed: 2017-09-26 Decided: 2019-10-10 Vaccine: influenza Vaccination date: 2016-10-15 Condition: right full-thickness rotator cuff tear Outcome: compensated Award amount USD: 105000 AI-assisted case summary: Geraldine Abel filed a petition for compensation under the National Vaccine Injury Compensation Program on September 26, 2017. She alleged that an influenza vaccine administered on October 15, 2016, caused a right full-thickness rotator cuff tear. The respondent, the Secretary of Health and Human Services, denied that the vaccine caused the alleged injury or any other injury, and denied that the petitioner's current disabilities were sequelae of a vaccine-related injury. Despite these denials, the parties reached a joint stipulation for settlement. Chief Special Master Nora Beth Dorsey adopted the stipulation as the decision of the Court. Pursuant to the stipulation, Geraldine Abel was awarded a lump sum of $105,000.00, payable by check to the petitioner, as compensation for all items of damages available under the program. This amount represents a compromise of the parties' respective positions on liability and/or damages. The decision was issued on October 10, 2019. Petitioner was represented by Lawrence R. Cohan of Anapol Weiss, and respondent was represented by Lisa Ann Watts of the U.S. Department of Justice. The public decision does not describe the onset, specific symptoms, diagnostic tests, treatments, or the medical mechanism of injury. Theory of causation field: Petitioner Geraldine Abel alleged that an influenza vaccine administered on October 15, 2016, caused a right full-thickness rotator cuff tear. The respondent denied causation. The parties reached a joint stipulation for settlement, and Chief Special Master Nora Beth Dorsey adopted the stipulation. The injury is considered a Table injury. The stipulation does not detail the specific medical mechanism of injury or name any experts. Petitioner was awarded $105,000.00 as a lump sum for all damages. The decision was issued on October 10, 2019. Petitioner's counsel was Lawrence R. Cohan, and respondent's counsel was Lisa Ann Watts. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_17-vv-01339-0 Date issued/filed: 2019-10-10 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 07/01/2019) regarding 53 DECISION Stipulation/Proffer Signed by Special Master Nora Beth Dorsey. (sw) Service on parties made. -------------------------------------------------------------------------------- Case 1:17-vv-01339-UNJ Document 57 Filed 10/10/19 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-1339V Filed: July 1, 2019 UNPUBLISHED GERALDINE ABEL, Petitioner, Special Processing Unit (SPU); Joint v. Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury SECRETARY OF HEALTH AND Related to Vaccine Administration HUMAN SERVICES, (SIRVA) Respondent. Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner. Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 Dorsey, Chief Special Master: On September 26, 2017, petitioner 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 right “full-thickness rotator cuff tear that was caused in fact” by an influenza (“flu”) vaccination, administered on October 15, 2016. Petition at 1; Stipulation, filed July 1, 2019, at ¶¶ 2, 4. Petitioner further alleges that the vaccine was administered in the United States, that she suffered the residual effects of her injury for more than six months, and that there has been no prior award or settlement of a civil action for damages as a result of her condition. Petition at 1, 6; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused petitioner’s alleged right full-thickness rotator cuff tear, or any other injury, and further denies that 1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is 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). 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). Case 1:17-vv-01339-UNJ Document 57 Filed 10/10/19 Page 2 of 7 petitioner’s current disabilities are sequelae of a vaccine-related injury. ” Stipulation at ¶ 6. Nevertheless, on July 1, 2019, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation: A lump sum of $105,000.00 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. The undersigned approves 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/Nora Beth Dorsey Nora Beth Dorsey 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 Case 1:17-vv-01339-UNJ Document 57 Filed 10/10/19 Page 3 of 7 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS GERALDINE ABEL. Petitioner, V. No. l 7-1339V Chief Special Master Dorsey SECRETARY OF HEALTH AND ECF-SPU HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: 1. Geraldine Abel ("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 the influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the ''Table"), 42 C.F.R. § 100.3(a). 2. Petitioner received a flu vaccine in her right deltoid on October 15, 2016. 3. The vaccine was administered within the United States. 4. Petitioner alleges that she suffered a right "full-thickness rotator cuff tear that was caused in fact" by the flu vaccine. Petitioner further alleges that she suffered the residual effects_ of these injuries for more than six months. 5. Petitioner represents that there has been no prior award or settlement ofa civiJ action for damages on her behalf as a result of her condition. Case 1:17-vv-01339-UNJ Document 57 Filed 10/10/19 Page 4 of 7 6. Respondent denies that the flu vaccine caused petitioner's alleged right full-thickness rotator cuff tear, or any other injury, and further denies that petitioner's current disabilities are sequelae 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 ofj udgment 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-2l(aXl), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of$105,000.00 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-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-2l(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 her 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, Federal or State health benefits programs (other than Tit~ XIX of the Social Security Act (42 U.S.C.§ 1396 et seq.)), or entities that provide health services on a prepaid basis. 2 Case 1:17-vv-01339-UNJ Document 57 Filed 10/10/19 Page 5 of 7 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, 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 descnbed in parajtraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her 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 natwe) 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 accom1t of, or in any way growing out ot: 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 vaccine administered on October 15, 2016, as alleged by petitioner in a petition for vaccine compensation filed on September 26, 2017, in the United States Court of Federal Claims as petition No. 17-l339V. 14. If petitioner should die prior to entry ofj udgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties. I 5. If the special master tails 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 3 Case 1:17-vv-01339-UNJ Document 57 Filed 10/10/19 Page 6 of 7 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 comp let~ 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 right full-thickness rotator cuff tear, or any other injury, or that her current disabilities are sequelae of her alleged vaccine-related injury. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. I END OF STIPULATION I 4 Case 1:17-vv-01339-UNJ Document 57 Filed 10/10/19 Page 7 of 7 Respectfully submitted, PETITIONER: ~{2'--LL GERALDINE ABEL ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: p ~ 'i_L--.__ COHAN,ESQ. C~ INE E. REEVES ANAPOL WEISS Deputy Director One Logan Square Torts Branch 130 North 181h Stree~ Suite 1600 Civil Division Philadelphia, PA 19103 U.S. Department of Justice Tel: (215) 790-4567 P. 0. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUfflORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR THESECRETARYOFHEALTHAND RESPONDENT: HUMAN SERVICES: 1li ~ WOA.d ;s,,=c f'-- I J, _N_A_R_A_Y_A_N_N_A_I_~-M-.D-.-------- ~ WATTS Director Senior Trial Attorney Division oflnjury Compensation Programs Torts Branch Healthcare Systems Bureau Civil Division Health Resources and Services Administration U.S. Department of Justice U.S. Department of Health and Human Services P. 0. Box 146 5600 Fishers Lane Benjamin Franklin Station Parklawn Building, Stop 08N146B Washington, DC 20044-0146 Rockville, MD 20857 Tel: (202) 616-4099 /,,:;.olJ