Jennings v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-0856V

JAMES JENNINGS, Chief Special Master Corcoran Petitioner, v. Filed: April 15, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Elizabeth Kyla Abramson, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner.

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

DECISION ON JOINT STIPULATION1

On August 4, 2022, James 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine he received on October 24, 2020. Petition at 1-9; Stipulation, filed at April 15, 2024, ¶¶ 1-4. Petitioner further alleges that his injury has lasted for more than six months. Petition at 5; Stipulation at ¶4. “Respondent denies that petitioner sustained a SIRVA Table Injury, denies that petitioner’s alleged shoulder injury was caused-in-fact by the flu vaccine, and denies that the flu vaccine caused petitioner any other injury or his current condition.” Stipulation at ¶ 6.

Nevertheless, on April 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.

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). Pursuant to the terms stated in the attached Stipulation, I award the following compensation:

A lump sum of $65,500.00, 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 ST A TES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

JAMES JENNINGS,

Petitioner, No. 22-856V (ECF) Chief Special Master Corcoran V. ECF

SECRETARY OF HEAL TH AND HUMAN SERVICES ,

STIPULATION

The parties hereby stipulate to the followin g matters:

1. James Jennings ("petitioner") filed a petition for vaccine compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (the " Vaccine

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

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

"Table"), 42 C.F.R. § 100.3(a)

2. Petitioner received a flu vaccine on October 24, 2020. 1

3. The vaccine was administered within the United States.

1 On February 1, 2021 and February 22, 2021 , petitioner also received the first and second doses of the COVID-19 vaccine in his left arm. Vaccines against COVID-19 are not contained in the Vaccine Injury Table. See 42 U.S.C. § 300aa-14 and 42 C.F.R. § 100.3(a). Pursuant to the declaration issued by the Secretary of Health and Human Services under the Public Readiness and Emergency Preparedness Act (42 U.S.C . §§ 247d-6d, 247d-6e), claims for alleged injuries from COVID-19 countermeasures, including vaccines, may be compensable under the Countermeasures Injury Compensation Program ("CICP") . See 85 Fed. Reg . 15198, 15202 (March 17, 2020). 4. Petitioner alleges that he suffered a Shoulder Injury Related to Vaccine

Admini stration ("S IRVA") within the time period set forth in the Table, and that he experi enced

residual effects of this injury for more than si x 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 the alleged injury .

6. Respondent denies that petitioner sustained a SIRVA Table Injury , denies that

petitioner' s alleged shoulder injury was caused-in-fact by the flu vaccine, and denies that the flu

vacc ine caused petitioner any other injury or his current condition

7. Maintaining their above-stated positions, the parties nevertheless now agree that the

iss ues between them shall be settled and that a dec ision should be ente red awarding the

co mpensati on desc ribed in paragraph 8 o f" thi s Stipul ati on.

8. J\s soo n as pract icable af"tcr an entry of judgment refl ecting a dec ision consistent with

the terms of thi s Stipul ati on, and a fter petiti oner has fil ed an electi on to receive compensation

pursuant to 42 U.S.C . § 300aa-2 1(a)(l), the Sec retary of"Health and lluman Services will issue

th e fo llowing vacc ine compensati on pay ment fo r all damages that wo uld be avail abl e under 42

lJ .S.C. § 300aa- I 5(a) :

A lump sum of $65,500.00 in the form of a check payabl e to petitioner. This amount represents compensation for all damages that would be availabl e under 42 U. S.C. § 300aa-1 5(a).

9. As soo n as practicabl e after the entry of judgment on entitlement in thi s case, and after

petitioner has filed both a pro per and tim ely elec ti on to rece ive compensati on purs uant to 42

U .S.C. § 300aa-2 l (a)( 1), and an application, the parties will submit to furth er proceedings before

the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this

petition.

2 10. 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-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.

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-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 attorney's fees and litigation costs, and past unreimbursed expenses, the money provided

pursuant to thi s Stipulation will be used so lely for the benefit of petitioner as co ntemplated 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, (a) does 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. § 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

3 petitioner resulting from, or alleged to have resulted from , the flu vaccination administered on or

about October 24, 2020, as alleged in a petition for vaccine compensation filed on or about

August 4, 2022 , in the United States Court of Federal Claims as petition No. 22-856V; and (b)

waives any and all rights to any compensation that may be available under the CICP , 42 U.S.C.

§ 247d-6e (or an action under 42 U.S.C. § 247d-6d(d)), for a claim alleging that a covered

countermeasure, including the two doses of the COY ID-19 vaccination administered on February

1, 2021 and February 22, 2021 , on their own or in combination with the flu vaccination

administered on October 24, 2020, caused or seriously aggravated the injuries that were the

subject of the petition for vaccine compensation filed on or about August 4, 2022, in the United

States Court of Federal Claims as petition N o. 22-856V, specifically a shoulder injury, for which

petitioner will rece ive compensation pursuant to thi s Stipulation. As part of thi s waiver,

petitioner here by withdraws any claim for compensation pending in the CICP. 2 If no claim for

compensation has been fil ed in the CICP as of the date this Stipulation is filed , petitioner waives

the right to file a claim as described in this paragraph for compensation in the CICP.

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

upon proper notice to the Court on behalf of either or both of the partie s.

15. If the special master fails to issue a deci sion in complete conformity with the terms

of this Stipulation or if the Court of Federal Claims fail s to enter judgment in conformity with a

decis ion that is in compl ete conformity with the terms of this Stipulation, then the parties '

settlement and thi s St ipulat ion shall be vo idab le at the so le di scretion of either party.

2 Once incorporated into a decis ion by the special master, petitioner agrees that respondent will send thi s Stipulati on to the CICP office as evidence of petitioner's withdrawal of their CICP claim.

4 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 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.

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 petitioner' s current disabilities.

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

5 Respectfully submitted,

PETITIONER:

JAMES JENNINGS

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

~~~~ - ELI HEATHER L. PEARLMA~ ' Mag 10 Christopher & Toale Law Firm Deputy Director 1015 15th Street NW, Suite 1125 Torts Branch Washington, DC 20005 Civil Division (888) 952-5242 U.S. Department of Justice eabramson@mctlaw.com P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEAL TH RESPONDENT: AND HUMAN SERVICES: Digitally signed by George R. George R. Grimes -514

Grimes -514 Date: 2024.03 .21 17:32:19 -04'00' CDR GEORGE REED GRIMES, MD, MPH A4b.Mu~ ETM ~ur Director, Division of Injury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of 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-25A (202) 616-2895 Rockville, MD 20857 adam.muffett@usdoj.gov

Dated: - -- -- - - - -