Gaines v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 19-1861V UNPUBLISHED

KEVIN T. GAINES, Chief Special Master Corcoran

Petitioner, Filed: February 15, 2022 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)

Howard Dale Mishkind, Mishkind Law Firm Co., L.P.A., Beachwood, OH, for Petitioner. Matthew Murphy, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1

On December 9, 2019, Kevin T. Gaines 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 December 19, 2016. Petition at ¶¶ 2-3; Stipulation, filed February 15, 2022, at ¶¶ 2-4. Petitioner further alleges the vaccine was administered in the United States, he experienced the residual effects of his condition for more than six months, and there has been no prior award or settlement of a civil action for damages as a result of his condition. Petition at ¶¶ 2, 5, 7; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu vaccine caused petitioner’s alleged shoulder injury, [or] any other injury; and denies that his current condition is a sequelae of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on February 15, 2022, 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 $70,000.00 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

KEVfN GAfNES, )

)

Petitioner, )

) v. ) No. l9-l861V

) Chiof Special Master Corcoran SECRETARY OF ) ECF HEALTH AND HUMAN SERVICES, )

) Respondent. )

________________ )

STIPULATION

The parties hereby stipulate to the following matters:

I. Kevin Gaines ("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 the seasonal influenza ("flu") vaccination, which is a vaccine contained in the Vaccine Injury Table (the "Table"), 42 C.F.R § 100.3 (a).

2. Petitioner received a flu vaccine in his left arm on December 19, 2016. 3. The vaccine was administered within the United States.

4. Petitioner alleges that he sustained a shoulder injury related to vaccine administration ("SIRVA") within the time period set forth in tbe Table following administration of the flu vaccine, or in the alternative, that his alleged shoulder injury was caused-in-fact by the vaccine. He further alleges that he 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 as a result of his condition.