Banks v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1074V

SOPHIA BANKS, Chief Special Master Corcoran

Petitioner, Filed: May 28, 2025 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Sean Frank Greenwood, Greenwood Law Firm, Houston, TX, for Petitioner.

Adam Nemeth Muffett, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On July 13, 2023, Sophia 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”). On January 9 and August 27, 2024, Petitioner filed amended petitions. Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza vaccine received on December 22, 2021. Second Amended Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On January 31, 2025, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On May 27, 2025, Respondent filed the attached joint stipulation,3 requesting that I issue a decision awarding $104,256.26 to Petitioner.

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).

3 Usually, a proffer is filed by Respondent if the parties have reached an informal agreement regarding the

appropriate amount of compensation to be awarded after an entitlement determination. However, in a Stipulation at ¶ 8. 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 Petitioner a lump sum payment of $104,256.26, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a).

The Clerk of Court is directed to enter judgment in accordance with this decision.4

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

minority of cases, the parties may choose to file a joint stipulation instead, representing more of a compromise regarding the compensation to be awarded.

4 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

) SOPHIA BANKS, ) ) Petitioner, ) ) No. 23-1074V V. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVlCES, ) ) Respondent. )

STIPULATION

The parties hereby stipulate to the following matters:

1. Sophia Banks, petitioner, fi led a petition for vaccine compensation under the National

Vaccine Tnjury 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. § 100.3 (a).

2. Petitioner received the flu vaccine on December 22, 2021. 1

3. The vaccination was administered within the United States.

4. Petitioner sustained a left shoulder injury related to vaccination administration

1 On March 29, 202 1, petitioner received COVID-19 vaccine in her left arm. Vaccines against COVID-l 9 are not contained in the Vaccine Injury Table. See 42 U.S.C. § 300aa-14 and 42 C.F.R.§ I 00J(a). Pursuant to the declaration issued by the Secretary of Health and Human Services under the Public Readiness and Emergency Preparedness Act (42 U.S.C. §§ 247d-6d, 247d-6e), claims for alleged injuries from COYlD-19 countermeasures, including vaccines, may be compensable under the Countermeasures Injury Compensation Program ("CICP"). See 85 Fed. Reg. 15198, 15202 (March 17, 2020). ("SIRVA") within the time period set forth in the Table following receipt of the flu vaccine, and

experienced the residual effects of a SIRVA injury for more than six months.

5. There is not a preponderance of evidence demonstrating that petitioner's injury is due

to a factor unrelated to vaccination.

6. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on petitioner's behalf as a result of petitioner' s condition.

7. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine Act

for her SJRVA Table injury. Therefore, 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 terms of this Stipu lation, and after petitioner has filed 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 $104,256.26 to be paid through an ACH deposit to petitioner's counsel's IOLTA account for prompt disbursement to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-1 5(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-2 l(a)( l), and an appl ication, 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 petitioner's 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-1 5(g), to the extent that payment has been made or can

2 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.

11. Payment 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-

l 5(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 atiorneys' 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- l 5(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa- 15(g) and (h).

13. ln return for the payments described in paragraphs 8 and 9, petitioner, in petitioner' s

individual capacity, and on behalf of petitioner's heirs, executors, administrators, successors or

assigns, (a) does fo rever 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 nature) that have been brought, could have been brnught, or

hereafter could be timely brought in the Court of Federal Claims, under the Vaccine Injury

Compensation Program, 42 U.S.C. § 300aa-10 et seq., (i) 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 that may be alleged to have resulted from, the COV lD-J 9

vaccination administered on March 29, 202 1, and (ii) that petitioner has had, now has, or

hereafter may have with respect to the inj ury that gave rise to the petition for vaccine

compensation filed on or about July 13, 2023, in the United States Court of Federal Claims as 3 petition No. 23-1 074Y; and (b) waives any and all rights to any compensation that may be

available under the Countermeasures injury Compensation Program (ClCP), 42 U.S.C. § 24 7d-

6e (or an action under 42 U.S.C. § 247d-6d(d)), for a claim alleging that a covered

countermeasure, including the COY1D-J9 vaccination administered on March 29, 2021, on its

own or in combination with the flu vaccination administered on December 22, 2021, caused or

seriously aggravated the injuries that were the subject of the petition for vaccine compensation

fil ed on or about July 13,2023, in the United States Court of Federal Claims as petition No. 23-

1074 V, including a shoulder injury, for which petitioner will receive compensation pursuant to

this Stipulation. lf petitioner has such a claim currently pending with the CICP, petitioner

hereby withdraws such claim for compensation in the ClCP.2 lf no claim for compensation has

been filed in the ClCP as of the date this Stipulation is fi led, petitioner waives the right to file a

claim as described in this paragraph for compensation in the CICP.

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. lf the special master fa ils to issue a decision in complete conformity with the terms

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

decision that is in complete con formity with the terms of this Stipu.lation, then the parties'

settlement and this Stipulation shall be voidable at the sole discretion of either party.

16. This Stipulation ex.presses a full and complete negotiated settlement of liability and

damages claimed under the National Childhood Vaccine Inj ury Act of 1986, as amended, except

2 After entry of judgment reflecting a decision consistent with the terms of this Stipulation, petitioner agrees that respondent will send this Stipulation to the CICP as evidence of petitioner's withdrawal of their ClCP claim and waiver of any potential compensation under the CJCP.

4 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 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. The Stipulation shall not be construed as an admission by the United States or the

Secretary of Health and HL1man Services that the flu vaccine caused petitioner's shoulder injury

or any other injury or her current condition; however, petitioner has satisfi ed the Table criteria to

establish entitlement to compensation.

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

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

END OF STIPULATION

5 Respectfu lly submitted,

PETITIONER:

Soph ia Banks (May 22, 202510:06 CDT)

SOPHIA BANKS

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

SEAN GREENWOOD HEATHER L. PEARLMAN Counsel for Petitioner Deputy Director The Greenwood Law Firm, PLLC Tort s Branch, Civil Division 1415 North Loop West, Suite 1250 U.S. Department of Justice Houston, Texas 77008 P.O. Box )46 832-356- 1588 Benjamin Franklin Station sean@gwoodlaw.com Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEYOFRECORDFOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Digitally signed by Jeffrey S. Jeffrey S. Beach -5 Beach -S Date: 2025.05.13 for - ---- 1Q·3fr48 -Q4'QQ'

CAPT GEORGE REED GRIMES, MD, MPH ADAM N. MUf-FETT Director, Division of Injury Trial Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justice Health Resources and Services Administration P.O. Box .1 46 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08W-25A 202-6 16-2895 Rockville, Md 20857 adam.muffett@usdoj.gov

Dated: 5 - 2 7 - 2-5