Banks v. Secretary of Health and Human Services

Opinion

CORRECTED

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1580V UNPUBLISHED

TOWANDA BANKS, Chief Special Master Corcoran

Petitioner, Filed: June 8, 2022 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)

Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.

Lynn Christina Schlie, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On November 12, 2020, Towanda Banks 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 shoulder injury related to vaccine administration (SIRVA) resulting from the adverse effects of an influenza (flu) vaccine she received on November 30, 2017. Petition at 1; Stipulation, filed at June 6, 2022, ¶¶ 1-2. Petitioner further alleges that the vaccination was administered within the United States, she suffered the residual effects or complications from her right SIRVA injuries for more than six months, and neither she, nor any other party, has ever received compensation in the form of an award or settlement for Petitioner’s vaccine-related injury. Petition at ¶¶ 1, 12; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused [P]etitioner to suffer a right shoulder injury or any other injury or her current condition, and denies that [P]etitioner sustained a SIRVA Table injury.” 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1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Nevertheless, on June 6, 2022, 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:

1. A lump sum of $50,000.00 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.

2. A lump sum payment of $674.67, representing compensation for satisfaction of a State of Louisiana Medicaid lien, payable jointly to Petitioner and Optum, and mailed to:

Optum L-3994 Columbus, OH 4326-3994

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

) TOWANDA BANKS, ) ) Petitioner, ) ) No. 20-1580V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. )

STIPULATION

The parties hereby stipulate to the following matters:

1. Towanda Banks, 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 an influenza ("flu") vaccine, which is a vaccine contained in the Vaccine Injury Table (the

''Table''), 42 C.F .R. § I 00.3 (a).

2. Petitioner received the flu vaccine on November 30, 2017.

3. The vaccination was administered within the United States.

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

Administration as defined in the Table; she further alleges that the flu vaccine caused her alleged

shoulder injury, and that she suffered the residual effects of her alleged 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. 6. Respondent denies that the flu vaccine caused petitioner to suffer a right shoulder

injury or any other injury or her current condition, and denies that petitioner sustained a SIRVA

Table 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 ofjudgment 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)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

A. A lump sum of $50,000.00 in the form of a check payable to petitioner; and

8. A lump sum of$674.67, 1 representing reimbursement of a Medicaid lien for services rendered to petitioner by the State of Louisiana, in the form of a check payable jointly to petitioner and Optum:

Optum L-3994 Columbus, OH 43260-3994

Petitioner agrees to endorse this check to Optum.

These amounts represent compensation for all damages that would be available under 42 U.S.C.

§ 300aa-l 5(a).

1 This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Louisiana may have against any individual as a result of any Medicaid payments the Louisiana Program has made to or on behalf of Towanda Banks as a result of her alleged injury relating to a vaccine administered on or about November 30, 2017, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h).

2 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)(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.

l 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- l 5(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

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.

1 I. Payments made pursuant to paragraph 8 of this Stipulation 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-I S(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 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

3 (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 unsuspected personal injuries to or death of petitioner resulting

from, or alleged to have resulted from, the flu vaccination administered on November 30, 2017,

as alleged by petitioner in a petition for vaccine compensation filed on or about November 12,

2020, in the United States Court of Federal Claims as petition No. 20-l580V.

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.

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 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 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 condition or in the

items of compensation sought, is not grounds to modify or revise this agreement.

4 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 or significantly aggravated

petitioner's alleged shoulder injury, or any other injury or her current condition.

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

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

END OF STIPULATION

I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I

5 Respectfully submitted,

PETITIONER:

TOW ANDA BANKS

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

JIM Co set for e · oner ~ ~Lit?~ Deputy Director Zgheib Saya , P.C. Torts Branch, Civil Division 75 South Broadway, 4th Floor U.S. Department of Justice White Plains, NY I 060 I P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OFTHESECRETARYOFHEALTH RESPONDENT: AND HUMAN SERVICES: George R. Grimes - Digitally signedbyGeorgeR. Grlmes-S14 S14 Date: 2022.05.31 21 ,43:33 -04'00'

CDR GEORGE REED GRJMES, MD, MPH 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, DC 20044-0146 and Human Services (202) 616-3667 5600 Fishers Lane, 08N 146B lynn.schlie@usdoj.gov Rockville, MD 20857

Dated: U. \ Lg \ ;;>,pa,~