Comora v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1646V

SAGE COMORA, Chief Special Master Corcoran

Petitioner, Filed: April 12, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Daniel Alholm, Alholm Law PC, Chicago, IL, for Petitioner.

Michael Joseph Lang, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On November 4, 2022, Sage Comora 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”) resulting from an influenza (“flu”) vaccine received in her left arm on September 29, 2021. Petition at 1; Stipulation, filed April 11, 2024, at ¶¶ 2-4. Petitioner further alleges the vaccine was administered in the United States, her injury lasted 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, 14-16; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu vaccine caused petitioner’s alleged shoulder injury, and further denies that the flu vaccine caused petitioner to suffer from any other injury or her current condition.” Stipulation at ¶ 6.

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).

Nevertheless, on April 11, 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. A lump sum of $25,000.00 in the form of a check payable to Petitioner;

and

B. A lump sum of $1,101.31, representing reimbursement of a Medicaid lien for services rendered to Petitioner by the State of Colorado, in the form of a check payable jointly to Petitioner and the Colorado Department of Health Care Policy & Financing.

Petitioner agrees to endorse this check to the Colorado Department of Health Care Policy & Financing and send it to the following address:

Colorado Department of Health Care Policy & Financing ATTN: Stephanie Monterroso 303 E. 17th Avenue Denver, CO 80203 State ID No. Y623686

Stipulation at ¶ 8. These amounts represent 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.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

SAGE COMORA, No. 22-1646V

Petitioner, Chief Special Master Corcoran ECF

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

STIPULATION

The parties hereby stipulate to the following matters:

I. Petitioner, Sage Comora, filed a petition for vaccine compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l Oto -34 (the ·'Vaccine

Program''). The petition seeks compensation for injuries allegedly related to petitioner's receipt

of the influenza vaccine, which is contained in the Vaccine Injury Table (the --Table"), 42 C.F.R.

§ I 00.3(a).

2. Petitioner received the influenza vaccine on or about September 29, 2021.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she sustained a shoulder injury related to vaccine

administration ("SIRVA") within the time period set forth in the table, or in the alternative, that

her alleged shoulder injury was caused by the vaccine. Petitioner further alleges that she

experienced the residual effects of this condition for more than six months.

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

for damages as a result of her condition.

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

vaccine caused petitioner's alleged shoulder injury, and further denies that the flu vaccine caused

petitioner to suffer from any other injury or her current condition.

7. Maintaining their above-stated positions, the parties neverthe less 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 l (a)( I), the Secretary of Health and Human

Services will issue the following vaccine compensation payments:

A. A lump sum of $25,000.00 in the form of a check payable to petitioner; and

B. A lump sum of$1,10J.31, 1 representing reimbursement of a Medicaid lien for services rendered to petitioner by the State of Colorado, in the form of a check payable jointly to petitioner and the Colorado Department of Health Care Policy & Financing.

Petitioner agrees to endorse this check to the Colorado Department of

Health Care Policy & Financing and send it to the following address:

Colorado Department of Health Care Policy & Financing ATTN: Stephanie Monterroso 303 E. 17th Avenue Denver, CO 80203 State ID No. Y623686

1 This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Colorado may have against any individual as a result of any Medicaid payments the Colorado Program has made to or on behalf of Sage Comora as a result of his alleged vaccine-related injury suffered on or about September 29, 2021, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-l 5(g), (h).

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These amounts represent 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-21(a)(I), and an application, the parties will submit to fu1ther proceedings

before the special master to award reasonable attorneys· fees and costs incurred in proceeding

upon this petition.

I0. 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.

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- I 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 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- I5(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa-l 5(g) and (h).

I 3. 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,

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does forever irrevocably and unconditionally release, acquit and discharge the United States and

the Secretary of Health and Human Services from any and al I 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. § 300 aa- 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 influenza vaccination administered on or about

September 29, 2021, as alleged in a petition for vaccine compensation filed on or about

November 4, 2022, in the United States Court of Federal Claims as petition No. 22-l 646V.

14. If petitioner should die prior to entry of judgment, this agreement shall be voidable

upon proper notice to the Comt 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 pa,t 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

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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 her current disability, 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

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

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Respectfully submitted.

PETITIONER:

~ "\ sAGBMORA ~

A'ITORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE OF THE A1TORNEY GENERAL:

52~~ Alholm Law, PC ISO S. Wacker Drive , .46-:f ~ ~Pe, UA,,--_ HEATIIER L. PEARLMAN Deputy Dncctor Torts Branch

Suitc2400 Civil Division Chicago. IL 60606 U.S.DepartmentofJustice TeJ: (312) 291-4615 Benjamin Franklin Station dan@sirvainjury.com Washington, OC 20044--0146

AUTHORIZED REPRESENTATIVE ATI'ORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND BUMAN SERVICES: Jeffrey S. =.:.:, Beach -S ::;.:2.= for CDR GEORGE REED GRIMF.s, MD, MPH MICHAEL J. LAN Director, Division of Injury Trial Attorney Compensation Programs Torts Branc~ Civil Division Health Systems Bumm U.S. Department of Justice Health Resources and Services P.O. Box 146 Administration Benjamin Franklin Station U.S. Departmmt ofHealth Washington, DC 20044-0146 md Human Services Tel: (202) 88~39 5600 Fishers Lane, 08W-25A MichacLLang3@usdoj.gov Rockville. MD 20857

Dated: