Miller v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0015V UNPUBLISHED

ROBERT MILLER, Chief Special Master Corcoran

Petitioner, Filed: August 23, 2022 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Influenza HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration Respondent. (SIRVA)

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Terrence Kevin Mangan, Jr., U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On January 4, 2021, Robert Miller 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 that was administered on January 7, 2020. Petition at 1; Stipulation, filed on August 23, 2022, at ¶¶ 2, 4. Petitioner further alleges that he received the vaccine in the United States, that he experienced the residual effects of his injury for more than six months, and there has been no prior award or settlement of a civil action for damages as a result of his alleged condition. Petition at 1-2; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused petitioner to suffer a right shoulder injury or any other injury and denies that petitioner sustained a SIRVA Table Injury.” Stipulation at ¶ 6.

1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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.

2National 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 (2012). Nevertheless, on August 23, 2022, 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 $36,000.00 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 OFFICE OF SPECIAL MASTERS

ROBERT Mll.,LER,

Petitioner, No. 21-0015V Chief Special Master Corcoran v. ECF

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

STIPULATION The parties hereby stipulate to the following matters:

1. Robert Miller, 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 the 0 influenza ("flu vaccine, which is a vaccine contained in the Vaccine Irtjury Table (the "Table,,), )

42 C.F.R. § 100.3 (a).

2. Petitioner received flu vaccine on January 7, 2020.

3. The vaccination was administered within the United States.

4. Petitioner alleges that he sustained a right shoulder injury related to vaccination

administration ("SIRVA") following receipt of the flu vacc!ne, within the Table time period, and

suffered the residual effects of this alleged injury for more than six months.

5. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on his behalf as a result of his condition.

6. Respondent denies that the flu vaccine caused petitioner to suffer a right shoulder injury or any other injury and denies that petitioner sustained a SIRVA Table Injury.

7. Maintaining their abov~stated positions, the parties nevertheless now agree that the

issues between them shall be settled and that a decision should b~ 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 filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

A lump sum of $36,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

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-2l{a)(l), and an application, the parties will submit to further proceedings

before the Chief Special Master to award reasonable attorneys' fees and costs incurred in

proceeding upon this petition.

10. Petitioner and his 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 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.

2 11. Payment made pursuant to paragraph 8 of this Stipulation 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 attorneys' fees and litigation costs, and past unrcimbursed 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-1S(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 his

individual capacity, and on behalf of his 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 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 petitioner resulting

from, or alleged to have resulted from, the flu vaccination administered on January 7, 2020, as

alleged by petitioner in a petition for vaccine compensation filed on or about January 4, 2021, in

the United States Court of Federal Claims as petition No. 21-00lSV.

14. If petitioner 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.

3 15. If the Chief 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 tenns of this Stipulation, then the parties'

settlement and this Stipulation shall 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

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 Hwnan Services that the flu vaccine caused petitioner to have a right

shoulder injury, or any other injury or his current condition.

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

4 Respectfully submitted,

PETITIONER:

R ·~ERTMILLER 11Wd2u/44' ATTORNEY OF RECORD AUTHORIZED REPRESENfATIVE FOR PETITIONER: OF THE ATTORNEY GENERAL:

£:::UlliLLER Attorney for Petitioner "',<~'<'- f.<. (;,Gt- HEATHER L. PEARLMAN Deputy Director vJv IJ-."'9 ~ cf',..,(. ~f'J-T'( 1

/'fJ /' ' rr.e.e-r O "-

Muller Brazil Torts Branch 715 Twining Road, Suite 208 Civil Division Dresher, PA 19025 U.S. Department of Justice {215) 885-1655 P.O. Box 146 max@rnullerbrazil.com Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENfATIVE ATTORNEY OF RECORD FOR OFTHESECRETARYOFHEALTII RESPONDENT: AND HUMAN SERVICES: George R. Grimes OlgltaflyslgnedbyGl!Ol'geR. Grlmes,S14 -s14 o;te; 2022.08.09 17)43:05 -o4'00'

CDR GEORGE REED GRIMES, MD, MPH TERRENCE K. MANGAN, JR. 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, 08Nl46B Tel: (202) 514-8988 Rockville, MD 20857 Email: terrence.mangan@usdoj.gov

Dated: -'{(2.3(22. - -- - -- -