Watford v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1195V UNPUBLISHED

DONALD WATFORD, Chief Special Master Corcoran Petitioner, Filed: April 1, 2022 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; HUMAN SERVICES, Pneumococcal Conjugate Vaccine; Influenza (“flu”) Vaccine; Shoulder Respondent. Injury Related to Vaccine Administration (SIRVA)

Bruce William Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for Petitioner.

Naseem Kourosh, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On September 14, 2020, Donald Watford 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 right and left shoulder injuries as a result of influenza (“flu”) and pneumococcal vaccines administered to him on February 2, 2019. Petition at 1; Stipulation, filed at March 31, 2022, at ¶¶ 1-2. Petitioner further alleges that he received the vaccine in the United States, that he experienced the residual effects of his injury 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 alleged condition. Petition at 1, 6; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained any SIRVA Table injury; denies that the vaccines caused petitioner’s alleged shoulder injuries, or any other injury; and Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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.

2National 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). denies that petitioner’s current condition is a sequela of a vaccine-related injury.”

Stipulation at ¶ 6.

Nevertheless, on March 31, 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 $25,000.00 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.

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

DONALD WATFORD, Petitioner, No. 20-1195V (ECF) V. Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate Lo the fo llowi ng matters: 1. Donald Watford ("petitioner") filed a petition for vacci ne compensation under the National Vaccine Injury Compensation Program, 42 U.S .C. §§ 300aa-10 et seq. (the "Vaccine Program·'). The petition seeks compensation for injuries allegedly related to petitioner's receipt of influenza and pneumococcal vaccines, which vaccines arc contained in the Vaccine Injury Tab le (the "Tab le"), 42 C.F.R. § 100.3(a).

2. Petitioner received a pneumococcal vacci ne in the left deltoid and an influenza vaccine in the right deltoid on February 12, 201 9.

3. The vaccinations were administered within the United States.

4. Petitioner allege~ that petitioner sustained right and left shoulder injuries related to vacci ne administration ("SIRVA") as set fo rth in the Table, or in the alternative, that petitioner's alleged shoulder inj uries were caused by the vaccines. Peti tioner further alleges that petitioner 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 petitioner's behalf as a result of petitioner's condition.

6. Respondent denies that petitioner sustained any SIRVA Table injury; denies that the vaccines caused petitioner's alleged shoulder injuries, or any other injury; and denies that petitioner's 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 of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuan t 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 $25,000.00 in the fo rm of a check payable to petitioner. This amount represents compensation for all damages that wou ld be available under 42 U.S.C. §300aa- 15(a).

9. f\s 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 compens<1tio11 pursuant to 42 U.S .C. § 300aa-21(a)(l), and an application, the parties will submit to further proceedings before the specia l master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition.

JO. 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 pol.ides, Federal or State health benefits programs (other than Title XIX of the Social Securi ty /\ct

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

ll. 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 fu nds.

12. The parties and their attorneys further agree and stipulate that, except fo r any award for attorneys' fees and litigation costs, and past unreimbursable expenses, the money provided pursuant to this Stipulation will be used solely for petitioner's benefi t 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 on behalf of petitioner's heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionall y 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 dc1m111ds 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 Vaccine Program, 42 U.S.C. § 300aa-10 el 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 pneumococcal vaccination or influenza vaccination administered on February 12, 2019, as alleged by petitioner in a petition for vaccine compensatio n fi led on or about September 14, 2020, in the United States Court of Federal Claims c1s petition No. 20- 1195V.

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 Lhe 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 dec ision that is in complete conformity with the terms of th is 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 ex pressly stated and clearly agreed to. The parties further agree and understand that the award descri bed in this Stipulation may retlect a compromise of the parties' respective positions as to liability and/or amount of damages, and furthe r, that a change in the nature of the injury or condition or in the items of compensation sought, is not g rounds to modify or revise this agreement.

l 7. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Service that the influe nza or pneumococcal vaccines caused petitioner's alleged injury or any other inj ury or petitioner's current disabi li ties, or that petitioner suffered an injury contained in the Vaccine Injury Table.

18. All rights and ob ligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, admi nistrators, successors, and/or assigns.

END OF STIPULATJON

Rcspectfull y submilled, PETITIONER: /

~er...ed DONALD WATFORD {Jr ATTORNEY OF RECORD AUTHORIZED REPRESENTATIVE FOR PETITIONER: OF THE ATTORNEY GENERAL:

~ BRUCE SLANE 14-:· " JJ ,~\b-?

HEATHER L. PEARLMAN ~ The Law Office of Bruce W. Slane, P.C. Deputy Director East Post Rd., Suite 205 Torts Branch White Plains, NY 10601 Civil Division Telephone: (914) 269-2010 U.S. Department of Justice Email: [email protected] P.O. Box 146 Benj,rn,in Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: George R. Grimes - Di9it<1lly signed by George R. f ' - J ~ )L&JVo ~ ~~'-r~~ Grimes •514 S14 Date: 2022.03.07 11 :35:57 •05'00' CDR GEORGE REED GRIMES, MD, MPH NASEEM KOUROSH Director, Division of Injury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice /\dministration P.O. Box 146 U.S . Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08N146B Tel: (202) 305-1159 Rockville, MD 20857 Email: [email protected]