Evans v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-168V

SHEILA EVANS, Chief Special Master Corcoran

Petitioner, Filed: January 23, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.

Julia Marter Collison, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On January 6, 2021, Sheila Evans 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 subsequently filed an amended petition on March 1, 2022. Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting the administration of the influenza (“flu”) vaccination received on October 25, 2018. Amended Petition at 1; Stipulation, filed at January 11, 2024, ¶¶ 1-2. Petitioner further alleges that the vaccine was administered within the United States, her symptoms lasted longer than six months, and she has not filed a civil action or received compensation in the form of an award or settlement for her vaccine-related injury. Amended Petition at 2, 12; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner sustained a shoulder injury, or any other injury; and denies that her current condition is a sequelae of a vaccine-related injury.” 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Nevertheless, on January 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 lump sum of $75,000.00 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 UNITED STATES COURT OF FEDERAL CLAIMS omcE OF SPECIAL MASTERS

SHEJLA EVANS,

Petitioner, No. 21-168V v. Chief Special Master Corcoran SPU SECRETARY OF HEALTH ANO HUMAN SERVICES,

STIPULATION

The parties hereby stipulate to the following matters:

1. Shella Evans (''petitioner") filed a petition for vaccine compensation under the

National Vaccine Injwy Compensation Program, 42 U.S.C. § 300aa-l Oto 34 (the "Vaccine

Program"). The petition seeks compensation for an injury allegedly related to petitioners receipt

of an influema ("flu") vaccine, which is contained in the Vaccine Injury Table (the "Tabloj, 42

C.F.R. § 100.3(a).

2. On October 25, 2018, petitioner received a flu vaccine.

3. The vaccine was administered in 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. She funher alleges that

she experienced the residual effects of this condition for more than six months. S. Petitioner represents that there has been no prior award or settlement ora civil

action for damages as a result of her alleged condition.

6. Respondent denies that petitioner sustained a shoulder injury as defined in the Vaccine Injury Table; denies that the vaccine caused petitioner's alleged shoulder injury, or any I ofS other injury~ and denies that her current condition is a sequelae of a vaccine-related injmy.

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 tenns of this Stipulation, and after petitioner has flied an election to receive compensation

pursuant to 42 U.S.C. § 300aa-21(a)(l), the Secretary of Health and Human Services will issue

vaccine compensation payment: a lump sum of$75,000.00 in the form of a check payable to

petidoner. This amount represent compensation for all damages that would be available under 42

U.S.C. § 300aa-lS(a).

9. As soon as practicable after the entry ofjudgment 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, tho parties will submit to further proceedings before

the special master to award reasonable attorneys' fees and costs incmred 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-1S(g), including 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 entities that provide health services on a pre-paid basis.

11. Payment made pursuant to paragraph 8 of this Stipulation, and any amount

awarded pursuant to paragyaph 9, will be made in accordance with 42 U.S.C. § 300aa-1 S(i),

subject to the avaiiaoiiity of sufficient statutory funds.

12. The parties and their attorneys further agree and stipulate that. except for any 2ofS 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-lS(a) and (d), and subject to the

conditions of42 U.S.C. § 300aa.•IS(g) and (h).

13. In return for the payments described in paragraph 8, and any amount awarded

pursuant to paragraph 9, petitioner, in her individual capacity, and on behalfof 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

loss of services, expenses and all demands ofwhatever 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-l0 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 a11eged to have resulted from the vaccine

administered on October 25, 2018, as alleged in a Petition filed on Janl181Y 6, 2021, in the United

States Court of Federal Claims as petition No. 2J-168V.

14. If petitioner should die prior to entty ofjudgment, this agreement shall be voidable

upon proper notice to the Court on behalfof either or both of the parties.

lS. Jfthe special master fails to issue a decision in complete confonnity with tho terms

of this Stipulation or if the United States Court of Federal Claims fails to enter judgment in

confonnity with a decision that is in complete confomuty with the terms of this Stipulation, then

the parties' settlement and this Stipulation shalt 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 3ofS 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 funher 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 aiieged shouider

injury, or any other injury or her current condition.

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

executots. administrators, successors, and/or assigns.

END OF STIPULA110N

4ofS Respectfully submitted,

PETITIONER:

A1TORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIOi\TER: OF TJ.J.~ AITO~"'7~ CE1'"ERAL:

HBA1rrER L. PEARLMAN Jefftey S. Pop & Associates Deputy Director 9150 Wilshire Blvd. Suite 241 Torts Branch Beverly Hills, CA 90212 Civil Division (310) 273-5462 U.S. Department of Justice jpop@poplawyeT.com P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPUSENTATIVE ATTORNEYOFRECORDFOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: GeorgeR. Oltllllttlftntdlly6""t~ Grimes-S14 GIIIIICl-514 o.at ;JOZl.1 "619:$$:JI -G5'00' l/!t( t_t-/2,~ CDR GEORGE REED GRIMES, MD, MPH J14tIAM. COLLISON Director, Division of Injury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resoutces and Services U.S. Department (If Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08W-2SA (202) 305-0102 Rockville, MD 20857 julia.collison@usdoj.gov

Dated: _ _, rl_ n_ r /J__~1- 5 o(5