Foster v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1899V

MITCHELL FOSTER, Chief Special Master Corcoran

Petitioner, Filed: July 9, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.

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

DECISION AWARDING DAMAGES1

On December 27, 2022, Mitchell Foster 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 he suffered a left shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, after receiving an influenza (“flu”) vaccine on October 9, 2020. Petition at 1, ¶ 2. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On February 2, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for his SIRVA. On July 9, 2024, Respondent filed the attached joint stipulation,3 requesting that I issued a decision awarding in the amount of $51,000.00 in

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 compensation to Petitioner and $460.08 for reimbursement of a Medicaid lien. 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 $51,460.08 as follows:

1. A lump sum payment of $51,000.00, in the form of a check payable to Petitioner; and

2. A lump sum payment of $460.08, representing reimbursement of a Medicaid lien for services rendered to Petitioner by the State of California, in the form of a check payable jointly to Petitioner and the State of California Department of Health Care Services (Account No. C95826145G-001T), and mailed to:

State of California Department of Health Care Services Recovery Section, MS 4720 P.O. Box 997425 Sacramento, CA 95899-7425 Case Name: Mr. Mitchell Foster Account No.: C95826145G-001T.

This amount represents compensation for all items of damages that would be available under Section 15(a). Id.

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.