Jennings v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-0637V

ERICA JENNINGS, Chief Special Master Corcoran

Petitioner, Filed: July 15, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Catherine Wallace Costigan, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner.

Naseem Kourosh, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On May 3, 2023, Erica Jennings 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 a human papilloma virus (“HPV”) vaccine received on October 14, 2021. Petition at 1-8; Stipulation, filed July 15, 2024, at ¶¶ 2-4. Petitioner also received an influenza vaccine on the same date. Id. Petitioner further alleges that the vaccines were administered in the United States, her vaccine related injuries have lasted more than six months, and neither Petitioner, nor any other party, has ever brought an action or received compensation in the form of an award or settlement, for Petitioner’s vaccine-related injuries. Petition at ¶¶ 1, 27, 29, 30; Stipulation at ¶¶ 3-5; Ex. 1. “Respondent denies that petitioner sustained a SIRVA Table injury; denies that the

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). vaccines caused petitioner’s alleged shoulder injury, or any other injury; and denies that petitioner’s current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on July 15, 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 $2,876.30 representing reimbursement of a Medicaid lien for services rendered to petitioner by Molina Healthcare of Mississippi, in the form of a check payable jointly to Petitioner and Optum:

Optum Attention: Duncan Burgess Optum Event Number: 182714983 Patient: Erica Jennings Date of Loss: 10/14/2021 P.O. Box 182643 Columbus, OH 43218

B. A lump sum of $96,123.70 in the form of a check payable to Petitioner for all remaining elements of compensation.

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.

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

ERICA JENNINGS,

Petitioner, No. 23-637V (ECF) V. Chier Special Master Corcoran

STIPULATION

The parties hereby stipulate to the following matters:

I. Erica Jennings, petitioner, filed a petition for vaccine compensation under the National

Vaccine Injury Compensation P rogram, 42 U.S.C. §§ 300aa-10 et seq. (the "Vaccine Program").

The petition seeks compensation fo r injuries al legcd ly related to petitioner's receipt or a human

papilloma virus ("1fPV") vaccine, which vaccine is contained in the Vaccine Injury Table (the

"Table"), 42 C.F.R. § 100.3(a).

2. Petitioner received an HPV and an innuenza vaccine on October 14, 2021.

3. The vaccinations were administered within the Un ited States.

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

administration ("SIRVA") as set forth in the Table, or, in the alternative. that petitioner' s alleged

shoulder injury was caused by the HPV vaccine. Petitioner further alleges that petitioner

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 petitioner's behalf as a result of petitioner's condition. 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the

vaccines caused petitioner's alleged shoulder injury, or any other injury; and denies that

petitioner's current 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 Jiled an election to receive compensation

pursuant to 42 U.S.C. § 300aa-21(a)(I), the Secretary of Health and lluman Services w ill issue

the fol lowing vaccine compensation payments:

A. A lump sum of $2,876.30 1 representing reimbursement of a Medicaid lien for services rendered to petitioner by Molina Healthcare of Mississippi, in the form of a check payable jointly to petitioner and Optum:

Optum Attention: Duncan Burgess Optum Event Number: 1827 14983 Patient: Erica .Jennings Date of Loss: 10/14/2021 PO Box 182643 Columbus, 01143218

B. A lump sum of$96,123.70 in the form of a check payable to petitioner for all remaining clements of compensation.

These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-l 5(a).

1 This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Mississippi may have against any individual as a result of any Medicaid payments the State of Mississippi has made to or on behalf of petitioner as a result of petitioner's alleged injury relating to a vaccine administered on October 14, 2021, under Title X IX of the Social Security Act, see 42 U.S.C. § 300aa- 15(g), (h). 2 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)(1 ), 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

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 Ti tie 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 of this Stipulation and any amounts awarded

pursuant to paragraph 9 of this Stipulation wi II be made in accordance with 42 U.S.C. § 300aa-

15(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 unrcimbursable expenses, the money provided

pursuant to this Stipulation will be used solely (or petitioner's benefit as contemplated by a strict

construction of 42 U.S.C. §§ 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C.

§§ 300aa-l 5(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 Ilealth and Human Services from any and all actions or causes of

3 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 Vaccine Program, 42 U.S.C.

§ 300aa- 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 petitioner resulting from, or alleged to

have resulted from, the vaccinations administered on October 14, 202 1, as alleged by petitioner

in a petition for vaccine compensation filed on or about May 3, 2023, in the United States Court

of Federal Claims as petition No. 23-637.

14. Tf petitioner shou ld d ie 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 terms

of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity w ith a

decision that is in complete conformity with the terms of this Stipulation, then the parties'

settlement and thi s Stipulation shall be; voidable at the sole discretion of either party.

16. Th is Stipulation expresses a full and complete negotiated settlement of liability and

damages claimed under the National Ch ildhood 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.

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

Secretary of Health and Human Service that the HPV vaccine caused petitioner's alleged injury

or any other injury or petitioner's current 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

5 Respectfully submitted,

PETITIONER:

- .- •.: ._ &ac1~ ..,,,,,,~..-•"·"'"""] [ :::.:::-:::=.:============== =====-.IIMl._.,..,.,_,._~ ERIC/\ JENNINGS

ATTORNEY OF RECORD AUTHORIZED REPRESENTATIVE FOR PETITIONER: OF THE ATTORNEY GENERAL:

~ coSTIG- ~/ CATHERrNE ~- __,Mt~'t1-.Q~ HEATHER L. PEARLMA MCTLA W Deputy Director 101 5 15th St NW, Suite l 125 Torts Branch Washington, DC 20005 Civil Division (888) 952-5242 U.S. Department or Justice ccostigan@mctl aw. com P.O. Box 146 Bcnjan,in Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATl VE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDE T: AND HUMAN SERVICES: George R. Grimes - Digitally signed by George R. Grimes•S14 S14 Date: 2024.07.02 08:47:37 •0/4'00'

C/\ PT GEORGE REED GRI MES, MD, MPI I N~ --- Director, Division or Injury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division I lealth Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Ilealth Benjamin Franklin Station and Human ervices Washington, DC 20044-0146 5600 Fishers Lane, 08W-25A (202) 305-11 59 Rockville, MD 20857 Naseem.Kourosh@usdoj.gov

Dated: 1 (\5 /1._0'L4-