Thomas v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-0882V

FRANCES THOMAS, Chief Special Master Corcoran

Petitioner, Filed: May 8, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Kenneth W. Thayer, III, Brandon J. Broderick, Attorney at Law, LLC, Ewing, NJ, for Petitioner.

Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On August 10, 2022, Frances Thomas 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 an influenza (“flu”) vaccine received on September 25, 2019. Petition at 1; Stipulation, filed May 8, 2024, at ¶¶ 2-4. Petitioner further alleges that the vaccine was administered in the United States, her condition persisted for more than six months, and she has not received compensation in the form of an award or settlement for her vaccine related injuries, nor has she filed a civil action for her injuries prior to filing this petition. Petition at 1; ¶¶ 13, 14; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a Table SIRVA within the timeframe set forth in the Table; denies that petitioner’s flu vaccination was administered in her left upper

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). extremity; and denies that the flu immunization caused or significantly aggravated petitioner’s alleged shoulder injury and/or any other injury.” Stipulation at ¶ 6.

Nevertheless, on May 8, 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 lump sum of $40,000.00 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 STA TES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

FRANCES THOMAS,

Petitioner,

v. No. 22-882V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

Respondent.

STIPULATION

The parties hereby stipulate to the following matters:

I. Frances Thomas ("petitioner" ) filed a petition for vaccine compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l Oto 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. § I 00.3(a).

2. Petitioner received a flu vaccine on or about September 25, 2019.

3. The vaccine was administered within the United States.

4. Petitioner alleges that the flu vaccine was administered in her left upper extremity;

that she sustained a left-sided shoulder injury related to vaccine administration ("SIRVA")

within the time period set forth in the Table; and that she experienced the residual effects of this

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 Table SIRVA within the timeframe set

forth in the Table; denies that petitioner's flu vaccination was administered in her left upper

extremity; and denies that the flu immunization caused or significantly aggravated petitioner's

alleged shoulder injury and/or any other 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 tenns 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 payment:

A lump sum of$40,000.00 in the form of a check payable to petitioner. This amount represents all compensation for damages that would be available under 42 U.S.C. § 300aa-l 5(a) for injuries allegedly related to petitioner's receipt of the flu vaccine.

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)( I), 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 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 (42

U.S.C. § 1396 et seq.)), or entities that provide health services on a pre-paid basis.

2 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 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 5(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 paragraphs 8 and 9, petitioner, in her

individual capacity and on behalf of her heirs, executors, administrators, successors and/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-l 0 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 or

about September 25, 2019, as alleged by petitioner in a petition for vaccine compensation filed

on or about August I0, 2022, in the United States Court of Federal Claims as petition No. 22-

882V.

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 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 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 shoulder

injury, and/or any other injury.

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:

~~~~ FRANCES THOMAS

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

~~p,~ KENN AYER HEATHER L. PEARLMAN BRANDON J. BRODERICK, LLC Deputy Director 850 Bear Tavern Road, Ste. I 06 Torts Branch Ewing, NJ 08628 Civil Division (609) 434-2037 U.S. Department of Justice kthayer@brandonjbroderick.com P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORlZED REPRESENTATIVE ATTORNEY OF RECORD FOR OFTHESECRETARYOFHEALTH RESPONDENT: AND HUMAN SERVICES: Digitally signed by Jeffrey S. Jeffrey S. Beach -S Date: 2024.04.02 Beac h -S 11:s1:os-04•00· for CDR GEORGE REED GRIMES, MD, MPH Director, Division of Injury Senior Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources ~nd 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) 616-984 7 Rockville. MD 20857 ryan.pyles@usdoj.gov