Casey v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1483V

TERRY CASEY, Chief Special Master Corcoran

Petitioner, Filed: September 18, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Richard Christian Macke, R. Christian Macke, Newport, KY, for Petitioner.

Dorian Hurley, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On October 11, 2022, Terry Casey 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 shoulder injury related to vaccine administration (“SIRVA”) or, in the alternative, a recurring right upper arm abscess, resulting from an influenza (“flu”) vaccine received on October 10, 2019. Petition at 1; Stipulation, filed September 18, 2024, at ¶¶ 2-4. Petitioner further alleges that the vaccine was administered in the United States, she has experienced residual effects of her injury for more than six months, and neither Petitioner, nor any other party, has ever filed any action or received compensation in the form of an award or settlement for her vaccine- related injury. Petition at ¶¶ 2, 30-32; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu vaccine caused petitioner’s alleged shoulder injury, recurring right upper arm abscess, or any other injury; denies that petitioner suffered the residual effects of her alleged injury for more than six months; and

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). denies that petitioner’s current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on September 18, 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 $40,000.00 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.

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 U~ITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

TERRY CASEY,

Petitioner, No. 22-1483V Chief Special Master Corcoran V. ECF

SECRETARY OF HEALTH AND HUMAN SERVICES.

Respondent.

STIPULATION

The parties hereby stipulate to the following matters:

I . Terry Casey ("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 rdated to petitioner's receipt

of an inf1uenza ("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 on October 10, 20 l 9.

3. The vaccine was administered within the United States.

4. Petitioner alleges that petitioner suffered a shoulder i11ju1y related to vaccine

administration ("SIRVA") within the time period set forth in the Table. In the alternative,

petitioner alleges that petitioner suffered a recutTing righi upper amt abscess at the right deltoid

site of vaccination that was caused-in-fact by the flu vaccine and resulted in muscle necrosis.

Petitioner further alleges that petitioner suffered the residual effects of the alleged inju1y for

more than six months. 5. 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 the alleged injury.

6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the t1u

vaccine caused petitioner's alleged shoulder injury, recurring right upper arm abscess, or any

other injury; denies that petitioner suffered the residual effects of her alleged inju1y for more

than six months; and denies that petitioner's CUlTent condition is a sequela 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 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-2 I (a)(l ), the Secreta1y of Health and Human Services will issue

the following vaccine compensation payment:

A lump sum of $40,000.00 in the fonn 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 entiy 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)( I), 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 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

2 primarily liable under 42 U.S.C. § 300aa-l S(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.

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-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 attorney's fees and litigation costs, and past unreirnbursed 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-l5(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 petitioner's

individual capacity, and on behalf of petitioner's 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 (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-l 0 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

3 October 10, 2019, as alleged in a petition for vaccine compensation filed on or about October 11.

2022, in the United States Court of Federal Claims as petition No. 22-l483V.

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 tenns

of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity 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.

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 injury or

any other injury or petitioner's cunent disabilities, or that petitioner suffered an injury contained

in the Vaccine Injury Table.

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

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

END OF STIPULATION

4 Respectfully submitted,

PETITIONER:

TERRY

ATTORNEY OF RECORD FOR AUTHORJZED REPRESENTATIVE PETITlONE OF THE ATTORNEY GENERAL:

R. CHRISTIAN MACKE ~ ~-' p~~J ,ti\.A~ - - IO West 4th Street Deputy Director Newport, KY 41071 Torts Branch Phone: (859) 261-0012 Civil Division Email: chrismacke@fuse.net U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORJZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey S. Digitally signed by Jeffrey S.Beach·S Beach -S ~~ Date: 2024.08.2812:01:32 -04•00· for CAPT GEORGE REED GRIMES, MD, MPH DORIAN HURLEY Director, Division of Injury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Departmt>nt of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08W-25A Phone: (202)353-7751 Rockville, MD 20857 Email: dorian.hurley@usdoj.gov

Dated: q/I R'./2.02. 4