Wilson v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1142V

CHRISTINE WILSON, Chief Special Master Corcoran

Petitioner, Filed: December 16, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jessica Anne Olins, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner. Julianna Rose Kober, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1

On July 24, 2023, Christine Wilson, 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 Table injury – shoulder injury related to vaccine administration (“SIRVA”) as a result of the administration of an influenza ("flu") vaccination on February 25, 2022. Stipulation filed December 2, 2024, at ¶¶ 1-2, 4; see Petition at 1, ¶¶ 1, 26, 30. Petitioner further alleges that she received the vaccine in the United States, that she suffered the residual effects of her injury for more than six months, and that there has been no prior award or settlement of a civil action on her behalf as a result of her injury. Stipulation at ¶¶ 3-5; see Petition at ¶¶ 1, 28, 31-32. “Respondent denies that [P]etitioner sustained a SIRVA Table injury; denies that the vaccine caused [P]etitioner’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 December 2, 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. A lump sum of $48,000.00 in the form of a check payable to Petitioner;

and

B. A lump sum of $6,032.83, representing reimbursement of a Medicaid lien for services rendered to Petitioner by the State of South Carolina, in the form of a check payable jointly to Petitioner and Amerigroup:

Carelon Subrogation

Attn: Patricia Wyland

PO Box 659940

San Antonio, TX 78265-9939

Petitioner agrees to endorse this check to Amerigroup.

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 Nintex AssureSign “Document Completion Report” located at pages seven and eight of the parties’ Stipulation has been omitted from the attached copy of the Stipulation. 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.

lN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

CHRISTlNE WILSON, Petitioner,

v. No. 23-l 142V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

Respondent.

STIPJJJ,ATIQN

The parties hereby stipulate to the following matters:

I. On July 24, 2023, Christine Wilson ("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 an influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table,,), 42 C.F.R. § I00.3(a).

2. Petitioner received a flu vaccine on February 25, 2022.

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. She further alleges that she experienced the residual effects of this condition for more than six months.

5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her alleged injury.

6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the

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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 tenns 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 payments:

A. A lump sum of $48,000.00 in the fonn of a check payable to petitioner; and

B. A lump sum of $6,032.83, 1 representing reimbursement of a Medicaid lien for services rendered to petitioner by the State of South Carolina, in the form of a check payable jointly to petitioner and Amerigroup:

Carelon Subrogation

Attn: Patricia Wyland

PO Box 659940

San Antonio, TX 78265-9939

Petitioner agrees to endorse this check to Amerigroup. 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

This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of South Carolina may have against any individual as a result of any Medicaid payments Amerigroup has made to or on behalf of Christine Wilson as a result of her alleged vaccine-related injury suffered on or about February 25, 2022, under Title XIX of the Social Security Act,~ 42 U.S.C. § 300aa-l 5(g), (h).

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42 U.S.C. § 300aa-21 (a)( 1), 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.

10. Petitioner and her 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.

l t. 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 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 of42 U.S.C. § 300aa~ I 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-l S(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 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

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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 February 25, 2022, as alleged in a petition for vaccine compensation filed on or about July 24, 2023, in the United States Court of Federal Claims as petition No. 23-1142V.

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 of the parties.

15. If the special master fails to issue a decision in complete conformity with the tenns of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity 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 petitioner sustained a SIRVA Table injury; that the flu vaccine caused any other injury; or that her current condition is a sequelae of a vaccine- related injury.

18. AU rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

ENDOF

STIPULATION

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Respectfully submitted,

PETITIONER:

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Christine Wilson [ _____________ ,,_ _ ,_

CHRISTINE WILSON

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

~~ MCTLaw --4-4-~'tt:--:P~

HEATHER L. PEARLMAN

Deputy Director

l325 4th Ave. Suite 1730 Torts Branch Seattle, WA 98101 Civil Division (888) 952-5242 U.S. Department of Justice jolins@mctlaw.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:

Jeffreys. ~lt=~~~~gnedbyJeffrey

Beach _ _____ -S Date:2024.ll.1210:16:27 -os·oo· for

CAPT GEORGE REED GRJMES, MD, MPH JdLlANNAR. KOBER Director, Division of Injury Compensation Trial Attorney 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 and Human Services Benjamin Franklin Station 5600 Fishers Lane, 08W-25A Washington, DC 20044-0146 Rockville, MD 20857 (202) 742-6375 Julianna.R.Kober@usdoj.gov

Dated: (2.ID2/7AZ!f ,

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