Watkins v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-0241V

NICHOLAS WATKINS, Chief Special Master Corcoran

Petitioner, Filed: May 1, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.

Lauren Kells, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1

On February 21, 2023, Nicholas Watkins 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”) following an influenza vaccination he received on July 5, 2022. Petition at 1; Stipulation, filed at April 30, 2024, ¶¶ 2, 4. Petitioner further alleges that his SIRVA symptoms have persisted longer than six months. Petition at ¶ 18; Stipulation at ¶ 4. “Respondent denies “that Petitioner sustained a SIRVA Table injury; denies that Petitioner’s alleged shoulder injury or its residual effects were caused-in-fact by the Tdap vaccine; and denies that the Tdap vaccine caused Petitioner any other injury or Petitioner’s current condition.” 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 April 30, 2024, the parties filed the attached joint stipulation, 3 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 $28,500.00 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. 4

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

3 The filed Stipulation contained an electronic signature confirmation page that has been removed to protect the signers’ confidential information.

4 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 fflE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

NICHOLAS WATKINS

Petitioner, No. 23-241V Chief Special Master Corcoran v. ECF

STIPULATION The parties hereby stipulate to the following matters:

I. Nicholas Watkins ("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 a tetanus, diphtheria, and acellular pertussis ("Tdap") vaccine, which vaccine is contained in

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

2. Petitioner received a Tdap vaccine on July 5, 2022, in the left deltoid.'

3. The vaccine was administered within the United States.

1 Petitioner also received a COVID-19 vaccine on July 5, 2022, in the left deltoid. Vaccines against COVID-19 are not contained in the Vaccine Injury Table. See 42 U.S.C. § 300aa-14 and 42 C.F.R. § I00.3(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 petitioner suffered a should injury related to vaccine

administration ("SIRVA") that was caused-in-fact by the Tdap vaccine. Petitioner funher

alleges that petitioner suffered the residual effects of the alleged injury for more than six months.

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

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 or its residual effects were caused-in-fact by the Tdap

vaccine; and denies that the Tdap vaccine caused petitioner any other injury or petitioner's

current condition.

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 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-21(a)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

A lump sum of $28,500.00 in the fonn 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-2 t(a)(l ), and an application, the parties will submitto further proceedings before

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

petition.

2 l 0. 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 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 attorney's fees and litigation costs, and past unreimbursed 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-15{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 011 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

hereafter could be timely brought in the Court of Federal Claims, under the Vaccine Injury

Compensation Program, 42 U.S.C. § 300aa-l O et seq., (i) 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 that could be alleged to have resulted from, the vaccinations

administered on July 5, 2022, and/or (ii) that petitioner has had, now has, or hereafter may have

with respect to the injury that gave rise to the petition for vaccine compensation filed on or about

February 21, 2023, in the United States Court of Federal Claims as petition No. 23-241 V; 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 COVID-19 vaccination administered on July 5, 2022, on its own

or in combination with the Tdap vaccination administered on July 5, 2022, caused or seriously

aggravated the injuries that were the subject of the petition for vaccine compensation filed on or

about February 21, 2023, in the United States Court of Federal Claims as petition No. 23-241 V,

specifically a shoulder injury, for which petitioner will receive compensation pursuant to this

Stipulation. If petitioner has such a claim currently pending with the CICP, petitioner hereby

withdraws such claim for compensation in the CI CP. 2 If no claim for compensation has been

filed 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, this agreement shall be voidable

upon proper notice to the Court 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.

2 Once incorporated into a decision by the special master, petitioner agrees that respondent will send this Stipulation to the CICP as evidence of petitioner's withdrawal of their ClCP claim and waiver of compensation under the CICP.

4 I 6. 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 Tdap 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. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

I

5 Respectfully submitted,

PETITIONER:

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

JI Y .Z EIB , J.-vc~LJ\ \4. HEATHER L. PEARLMAN P< 1 Lb:!/l.__ gheib S • P.C. Deputy Director 75 South Broadway, 4th Floor Torts Branch White Plains, NY 10601 Civil Division (914) 729-1110 U.S. Department of Justice j im@vaccinelawyers.com P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey S. ~•~n:~i ~~ned by Jeffrey

Bea Ch -5 _ Date: 2024.04.23 09:00:48 -04'00' for CDR GEORGE REED GRIMES, MD, MPH 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 202-616-4187 Rockville, MD 20857 lauren.kells@usdoj.gov