Gray v. Secretary of Health and Human Services

• Court: United States Court of Federal Claims
• Decided: January 22, 2025
• Docket: 23-0461V
• Status: Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-0461V

ERIKA GRAY, as Natural Guardian Chief Special Master Corcoran and Legal Representative of her Minor Son, G.G., Filed: December 18, 2024

Petitioner, v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner.

Elizabeth Andary, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On March 31, 2023, Erika Gray 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 behalf of her minor son, G.G. Petitioner alleges that G.G. suffered a shoulder injury related to vaccine administration (“SIRVA”), as a direct and proximate cause of the human papillomavirus (“HPV”) vaccine G.G. received on March 30, 2022. Petition at 1, ¶¶ 2, 16, 21; Stipulation, filed Dec. 18, 2024, ¶¶ 1-2, 4. Petitioner further alleges that G.G. received the vaccine within the United States, that G.G. suffered the residual effects of the SIRVA for more than six months, and that neither she nor any other party has filed a civil action or received compensation for G.G.’s SIRVA, alleged as vaccine caused. Petition at ¶¶ 2, 15, 18-19; Stipulation at ¶¶ 3-5. “Respondent denies that G.G.’s alleged Table SIRVA or

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). its residual effects were caused by the HPV vaccine; and denies that the HPV vaccine caused G.G.’s current condition.” Stipulation at ¶ 6.

Nevertheless, on December 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) A lump sum of $1,000.00, representing compensation for actual unreimbursable expenses, in the form of a check payable to Petitioner, Erika Gray; and

b) An amount of $19,000.00 to purchase the annuity contract described in the Stipulation, made payable to the life insurance company from which the annuity will be purchase.

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 OFFICE OF SPECIAL MASTERS

ERIKA GRAY, as Natural Guardian and Legal·Representative of her Minor Son, G.G.,

Petitioner, No. 23-461V Chief Special Master Brian H. Corcoran v. ECF

STIPULATION

The parties hereby stipulate to the following matters:

l. Erika Gray ("petitioner"), on behalf of G.G., a minor child, filed a petition for vaccine

compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l0

to -34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related

to G.G.'s receipt of the human papillomavirus ("HPV") vaccine, which vaccine is contained in

the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a).

2. G.G. received the HPV vaccine on or about March 30, 2022.

3. The vaccination was administered within the United States.

4. Petitioner alleges that G.G. suffered a Table shoulder injury related to vaccine

administration ("SIRVA") as a result of the HPV vaccination. Petitioner further alleges that

G.G. 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 on G.G.'s behalf as a result ofG.G.'s condition. 6. Respondent denies that G.G.'s alleged Table SIRVA or its residual effects were

caused by the HPV vaccine; and denies that the HPV vaccine caused G.G. any other injury or

G.G.'s current condition.

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 terms of this Stipulation, and after petitioner has filed an election to receive compensation

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

the following vaccine compensation payments:

a. A lump sum of $1,000.00, which amount represents compensation for past unreimbursable expenses, in the form of a check payable to petitioner, Erika Gray;

b. An amount of $19,000.00 to purchase the annuity contract described in paragraph 10 below, paid to the life insurance company from which the annuity will be purchased (the "Life Insurance Company").

These amounts represent compensation for all damages that would be available under 42

U.S.C. §300aa-15(a).

9. The Life Insurance Company must have a minimum of $250,000,000.00 capital and

surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company

must have one of the following ratings from two of the following rating organizations:

a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;

b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aal, or Aaa;

c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+,orAAA;

d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA, AA+, or AAA.

2 10. The Secretary of Health and Human Services agrees to purchase an annuity contract

from the Life Insurance Company for the benefit of G.G., pursuant to which the Life Insurance

Company will agree to make annuity payments to G.G. for all other damages that would be

available under 42 U.S.C. §300aa-15(a), as follows:

a. Beginning May 28, 2027, $5,331.41 per year for four years certain.

The purchase price of the annuity described in this paragraph shall neither be greater than

nor less than $19,000.00. In the event that the cost of the annuity set forth above varies from

$19,000.00, the annuity payment set forth above shall be adjusted to ensure that the total cost of

the annuity is neither less nor greater than $19,000.00. Should G.G. predecease payment of any

of the certain annuity payments set forth above, said payments shall be made to his estate.

However, written notice to the Secretary of Health and Human Services and the Life Insurance

Company shall be provided within twenty (20) days of G.G.'s death.

11. The annuity contract will oe owned solely and exclusively by the Secretary of Health

and Human Services and will be purchased as soon as practicable following the entry of a

judgment in conformity with this Stipulation. The parties stipulate and agree that the Secretary

of Health and Human Services and the United States of America are not responsible for the

payment of any sums other than the amounts set forth in paragraph 8 herein and the amounts

awarded pursuant to paragraph 13 herein, and that they do not guarantee or insure any of the

future annuity payments. Upon the purchase of the annuity contract, the Secretary of Health and

Human Services and the United States of America are released from any and all obligations with

respect to future annuity payments.

12. The parties stipulate and agree that the annuity payments cannot be assigned,

accelerated, deferred, increased, or decreased by the parties and that no part of any annuity

3 payments called for herein, nor any assets of the United States or the annuity company, are

subject to execution or any legal process for any obligation in any manner. Petitioner and

petitioner's heirs, executors, administrators, successors, and assigns do hereby agree that they

have no power or right to sell, assign, mortgage, encumber, or anticipate said annuity payments,

or any part thereof, by assignment or otherwise, and further agree that they will not sell, assign,

mortgage, encumber, or anticipate said annuity payments, or any part thereof, by assignment or

otherwise.

•13. 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-2l(a)(l), 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.

14. 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-15(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.

15. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to

paragraph 13 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i),

subject to the availability of sufficient statutory funds.

16. 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

4 pursuant to this Stipulation will be used solely for the benefit of G.G. 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-l5(g) and (h).

17. Petitioner represents that she presently is, or if necessary will become, duly

authorized to serve as guardian of G.G.'s estate under the laws of the State of North Carolina.

18. In return for the payments described in paragraphs 8 and 13, petitioner, in her

individual capacity and as legal representative of G.G., on behalf of herself, G.G., and his heirs,

executors, administrators, successors or assigns, do 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. § 300 aa-10 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 G.G. resulting from, or alleged to have resulted from, the HPV vaccination

administered on March 30, 2022, as alleged in a petition for vaccine compensation filed on or

about March 31, 2023, in the United States Court of Federal Claims as petition No. 23-461 V.

19. IfG.G. 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.

20. 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.

5 21. 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 13 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.

22. Petitioner hereby authorizes respondent to disclose documents filed by petitioner in

this case consistent with the Privacy Act and the routine uses described in the National Vaccine

Injury Compensation Program System of Records, No. 09-15-0056.

23. This Stipulation shall not be construed as an admission by the United States or the

Secretary of Health and Human Services that the HPV vaccine caused G.G.'s alleged injury, or

any other injury or G.G. 's current condition, or that G.G. suffered an injury contained in the

Vaccine Injury Table.

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

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

END OF STIPULATION

6 Respectfully submitted,

PETmONER:

ATIORNEYOFRECORDFOR AUTHORJZED REPRSENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

NANCY RS HEATIIER L PEARLMAN ~lion Deputy Direetor 300 North Greene St, Suite 2000 Torts Branch Greensboro, NC 27401 Civil Division (336) 645-3320 U.S. Department ofJustice E-mail: omeyers@,tumingpoinUitcom P.O. Box. 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: ~ltally signed by Jeffrey S• JefffeyS.Beach-S - ~~ch u ~.. . -S Date:2024.09.18 11:58:-46 -04'00' for ~ - fA - ~ CAPT GEORGE REED GRIMES, MD. MPH ELIZABETH A. ANDARY Director, Division oflnjury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department ofJustice Administmion P.O.Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington. DC 20()44..()146 5600 Fishers Lane. 08W-2SA Tel: (202) 616-9824 R.ockvilJe, MD 20857 E-mail: Elizabeth.A.Andaryratusdoj.gov