Kamau v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-0549V UNPUBLISHED

SAMUEL KAMAU, Chief Special Master Corcoran Petitioner, Filed: September 14, 2021 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Influenza HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration Respondent. (SIRVA)

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On April 15, 2019, Samuel Kamau 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 left shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine received on February 27, 2018. Petition at 1; Stipulation, filed September 14, 2021, at ¶¶ 2-4. Petitioner further alleges that the vaccine was administered in the United States, he experienced the residual effects of his SIRVA for more than six months, there is not a preponderance of the evidence demonstrating that Petitioner’s SIRVA and residual effects were due to a factor unrelated to his February 27, 2018 flu vaccine, and there has been no prior award or settlement of a civil action for damages on his behalf as a result of his condition. Petition at 1, 3; Stipulation at ¶¶ 3-6.

Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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.

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 (2012).

On June 25, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On September 14, 2021, 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 $2,181.20, which amount represents reimbursement for a Medicaid lien for vaccine injury-related services rendered on behalf of Petitioner, in the form of a check payable jointly to Petitioner and Equian (Tax ID XX-XXXXXXX), P.O. Box 182643, Columbus, OH 43218; Petitioner agrees to endorse this check to Equian (Event number 28719050).

• A lump sum of $80,000.00 in the form of a check payable to Petitioner, which represents compensation for all remaining damages that would be available under Section 15(a).

Stipulation at ¶ 8.

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 the 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

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.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) SAMUEL KAMAU, ) ) Petitioner, ) ) No. 19-549V V. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. )

STIPULATION The parties hereby stipulate to the following matters: 1. Samuel Kamau, 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 is a vaccine contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § I 00.3 (a).

2. Petitioner received the flu vaccine in his left ann on February 27, 2018.

3. The vaccination was administered within the United States.

4. Petitioner sustained a left shoulder injury related to vaccination administration ("SlR VA") within the time period set forth in the Table following receipt of a flu vaccine, and experienced the residual effects of his SIRVA for more than six months.

5. There is not a preponderance of the evidence demonstrating that petitioner's SIRVA and residual effects were due to a factor unrelated to his February 27, 2018 flu vaccination.

6. Petitioner represents that there has been no prior award or settlement of a civil action for damages on his behalf as a result of his condition.

7. Accordingly, petitioner is entitled to compensation under the tenns of the Vaccine Program for his left SIRVA Table injury. Therefore, 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-2 l (a)(l ), the Secretary of Health and Human Services will issue the following vaccine compensation payments: a. A lump sum of $2,181.20, which amount represents reimbursement for a Medicaid lien for vaccine injury-related services rendered on behalf of petitioner, in the fonn of a check payable jointly to petitioner and Equian (Tax ID No. 27- 0083277), P.O. Box 182643, Columbus, OH 43218; Petitioner agrees to endorse this check to Equian (Event number 28719050).

b. A lump sum of $80,000.00, in the form of a check payable to petitioner, which represents compensation for all remaining 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 U.S.C. § 300aa-2 l(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.

10. Petitioner and his 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.

I 1. 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 attorneys' 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- l 5(g) and (h).

13. In return for the payments described in paragraphs 8 and 9, petitioner, in his individual capacity, and on behalf of his 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 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 27, 2018, as alleged by petitioner in a petition for vaccine compensation filed on or about April 15, 2019, in the United States Court of Federal Claims as petition No. 19-549V.

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 confonnity 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 confonnity 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 vaccine either caused or significantly aggravated petitioner's alleged injury or any other injury; however, petitioner has satisfied the Table criteria to establish entitlement to compensation for his SIRVA.

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

END OF STlPULATION

I

Respectfully submitted.

,,·'., PETITIONER: ~ / /· / ,...~ ' SAMUEL KAMJ\ U ATTORNEY OF RECORD FOR AUTHORIZF:D REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

~A~ LAW OFFICES OF LEAH V. DURANT, PLLC ~~ ~~ HEATHER L. PEARLMAN Deputy Director 1717 K Street, NW Torts Branch. Civil Division Suite 900 U.S. Department of Justice Washington. DC 20006 P.O. Box 146 (202) 775-9200 Benjam in Franklin Station Washington. DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: K ~ ~ ~ ~u..( ~~L~~ D&ll.t -P. Mtsl-lleY, Dt-tSc, MS, A'PR.N, for TAMARA OVERBY MALI ,ORI 11. OPENCI IOWSKI Acting Director, Division of Injury Trial Attorney Compensation Programs Torts l3ranch. Civil Division Healthcare Systems Bureau U.S. Department of Justice Health Resources and Services P.O. Box 146 Administration Benjamin Franklin Station U.S. Dcpa1tment or Health Washington, O.C.20044-0146 and Human Services Tel: (202) 305-0660 5600 Fishers Lane, 08N 1468 ma Ilori .h.opcnchowsk i(ii)usdo j.gov Rockville. MD 20857

Dated: Off /,L{ /tJJ~ I