Rivera v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-107V

FANNY RIVERA, Chief Special Master Corcoran

Petitioner, Filed: June 20, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.

Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On January 5, 2021, Fanny Rivera 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 a tetanus, diphtheria, acellular pertussis (“Tdap’) vaccination on or about December 15, 2019. Petition at 1; Stipulation, filed at June 18, 2024, ¶¶ 2-4. Petitioner further alleges she sustained the SIRVA within the time period set forth in the Table and that she experienced the residual effects of her alleged injury for more than six months. Stipulation at ¶¶ 4. “Respondent denies that petitioner sustained a SIRVA Table injury; denies that the Tdap vaccine caused petitioner’s alleged shoulder injury, or any other injury or condition; 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 June 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:

1) A lump sum of $50,000.00 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.; and

2) A lump sum of $1,687.99 in the form of a check payable jointly to Petitioner and the Department of Human Services. Id. This amount represents reimbursement of a Medicaid lien for services rendered to petitioner by the Commonwealth of Pennsylvania.

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

FANNY RIVERA,

Petitioner,

v. No. 21-107V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

Respondent.

STIPULATION

The parties hereby stipulate to the following matters:

I. Fanny Rivera ("petitioner''), filed a petition for vaccine compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l Oto -34 ("Vaccine

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

of the tetanus, diphtheria, acellular pertussis ("Tdap") vaccine, which is contained in the Vaccine

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

2. Petitioner received the Tdap vaccine on or about December 15, 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 injury was caused-in-fact by the Tdap vaccine. Petitioner further alleges that she

experienced the residual effects of her 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 as a result of her condition. 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the

Tdap vaccine caused petitioner's alleged shoulder injury, or any other injury or condition; 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 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-2 I (a)( I), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

a. A lump sum of $50,000.00 in the form of a check payable to petitioner; and b. A lump sum of$1,687.99 1 representing reimbursement ofa Medicaid lien for services rendered to petitioner by the Commonwealth of Pennsylvania, in the form of a check payable jointly to petitioner and Department of Human Services.

Petitioner agrees to endorse this check to the Department of Human Services and mail it to:

Department of Human Services ATTN: Gregory Martin Re: CIS #590166516 Bureau of Program Integrity Commonwealth Towers 303 Walnut Street, 7th Floor Harrisburg, PA 17101

1 This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the Commonwealth of Pennsylvania may have against any individual as a result of any Medicaid payments the Commonwealth of Pennsylvania has made to or on behalf of petitioner as a result of her alleged injury relating to a vaccine administered on December 15, 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- l 5{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-21(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.

I0. Petitioner and her attorney represent that they have identified to respondent all

known sources of payment for items or services for which the Vaccine Program is not primarily

liable under 42 U.S.C. § 300aa-l 5(g), including State compensation programs, insurance

policies, Federal or State health benefits programs (other than Title XIX of the Social Security

Act), or entities that provide health services on a pre-paid basis.

11. Payments made pursuant to paragraph 8 of this Stipulation, and any amount awarded

pursuant to paragraph 9, will be made in accordance with 42 U.S.C. § 300aa-l 5(i) and 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 unreimbursable 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-l S(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa- I 5(g) and (h).

13. In return for the payments described in paragraph 8, and any amount awarded

pursuant to paragraph 9, petitioner, in her individual capacity and on behalf of her heirs,

executors, administrators, successors, and/or assigns, does forever irrevocably and

3 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 Vaccine Program 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 Tdap vaccine administered on or about

December 15, 2019, as alleged by petitioner in a petition for vaccine compensation filed on or

about January 5, 2021, and as amended by petitioner on May 20, 202 I, in the United States

Court of Federal Claims as petition No. 2l-107V.

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

upon proper notice to the Court of Federal Claims 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 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 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 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

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 Human Services that petitioner sustained a SIRVA Table injury; that the

Tdap vaccine caused any other injury or condition; or that her current condition is a sequela of a

vaccine-related injury.

I8. 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:

d _______ rt'~ ~YRtviffiiA.' 6 ..~ C l , /

ATIORNEYOFRECORDFOR PETJTIONER: AUTHORIZED REPRESENTATIVE OF TIIE ATTORNEY GENERAL:

J~ sQ. JEFFREY S. POP & ASSOCIATES ~~·~ Deputy Director 91 SO Wilshire Boulevard, Suite 241 Torts Branch Beverly Hills, CA 90212 Civil Division jpop@popJawyer.com U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146

AUTHORIZED REPRESENTATIVE ATIORNEYOFRECORDFOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Je"rey s, :..-r..;: z9 Olgltally signed by Jeffrey 11 , s. Beach-S Beach _5 ~~~~024.os2s 1s:2~.2a

CDR GEORGE REED GRJMES, MD, MPH tor 72SD:·tANGEL FELICIA Director, Division of Injwy 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 Hwnan Services Washington, D.C. 20044-0146 5600 Fishers Lane, 08W-25A felicia.d.langcl@usdoj.gov Rockville, MD 20857