Moreland v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-839V

BETTY MORELAND, Chief Special Master Corcoran

Petitioner, Filed: February 20, 2025 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On August 2, 2022, Betty Moreland 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”) after receiving an influenza (“flu”) vaccination on September 26, 2019. Petition at 1; Stipulation, filed at February 20, 2025, ¶¶ 2-4. Petitioner further alleges she suffered the residual effects of her alleged injury for more than six months, and that there has been no prior award of settlement of a civil action for damages on Petitioner’s behalf as a result of the alleged injury. Stipulation at ¶¶ 4-5. “Respondent denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused petitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury. ” Stipulation at ¶ 6.

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). Nevertheless, on February 20, 2025, 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:

1) A lump sum of $15,000.00, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner; and

2) A lump sum of $295.13, representing reimbursement of a lien for services rendered on behalf of Petitioner by the State of Kentucky, in the form of a check payable jointly to Petitioner and Kentucky State Treasury, Attn: TPL Unit; 656 Chamberline Avenue, Frankford KY, 40601, Re: Betty Moreland, Medicaid No. 0019296281. Petitioner has agreed to endorse this check to Kentucky State Treasury.

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

••••••••••••••••••••••••••••••••••••• BETTY MORELAND, * • • Petitioner, • No.22-839V • Chief Special Master Corcoran v. • • SECRETARY OF HEALTH AND • HUMAN SERVICES, • • Respondent. • ••••••••••••••••••••••••••••••••••••• STIPULATION

The parties hereby stipulate to the following matters:

1. Betty Moreland ("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

ofan 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 September 26, 2019.

3. The vaccine was administered within the United States.

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

("SIRVA'") within the time period set forth in the Table, or in the alternative, that her alleged

shoulder injury was caused by the v~ine. Petitioner further alleges that she suffered the

residual effects ofthe 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 petitioner's behalf as a result of the alleged injury. 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the

vaccine caused petitioner's alleged shoulder injury. or any other injury; and denies that her

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 ofjudgment reflecting a decision consistent with

the terms of this Stipulation, and after petitioner h8S filed an eJection 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 payments for all damages that would be available under 42

U.S.C. § 300aa-15(a):

a. A lump sum ofSlS,000.00, to be paid through an ACH deposit to petitioner's counsel's IOLTA accmmt for prompt disbursement to petitioner, and

b. A lump sum of $295.13,111which amount represents reimbursement of a lien for services rendered on behalf ofpetitioner by the State of Kentucky, in the form of a check payable jointly to petitioner and

Kentucky State Treasury Attn: TPL Unit 656 Chamberline Avenue Frankford KY, 40601 Re: Betty Moreland, Medicaid No. 0019296281

Petitioner agreed to endorse this check to Kentucky State Treasury.

Ill This amount represents full satisfaction ofany right of subrogation, assignment. claim, lien, or cause of action the State of Kentucky may have against any individual as a result of any Medicaid payments the State ofKentucky has made to or on behalf of petitioner as a result ofher alleged injury relating to a flu vaccine administered on September 26. 2019. under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h).

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

42 U.S.C. §300aa-15(a).

9. 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-21(a)(l), and an application, the parties will submit to further proceedings before

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

petition.

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. Payments 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 unreirnbursed 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-1 S(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa-15(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

3 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

September 26, 2019, as alleged in a petition for vaccine compensation filed on or about August

2, 2022, in the United States Court of Federal Claims as petition No. 22-839V.

14. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable

upon proper notice to the Court on behalf of either or both ofthe parties.

15. If the special master faiJs 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.

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 wnended, 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 liabi1ity and/or

4 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'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. AIJ rights and obligations ofpetitioner 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 I I I I I I I I I I

5 Respectfully submitted,

PETITIONER:

E MORELAND

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

~ MULLER BRAZIL , ,MR ~~~fLl~ HEATHER L. PE MAN Deputy Director 715 Twinning Road, Suite 208 Torts Branch Dresher, PA 19025 Civil Division Tel: (215) 885-1655 U.S. Department of Justice paul@mullerbrazil.com P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OFTHESECRETARYOFHEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey s. otgltally signed by Jeffrey S. Beach -S Beach -S Date:2025.01.24 1s:49'.53 -osw fo r CPT GEORGE REED GRIMES, MD, MPH Director, Division oflnjury Senior 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-2SA Tel: (202) 616-4181 Rockville, MD 20857 Email: debra.begley@usdoj.gov

Dated: t/ 2C 7..b.J