Stern v. Secretary of Health and Human Services

Sn the Guited States Court of Federal Clanns OFFICE OF SPECIAL MASTERS * RRR RR KR RK RK RK RK ROK KK KR ROBERT STERN, * No. 20-1270V ** Special Master Christian J. Moran Petitioner, ** ** Filed: June 27, 2022 V. ** ** Stipulation; influenza (“‘flu’’) vaccine; SECRETARY OF HEALTH ** lumbosacral radiculoplexus AND HUMAN SERVICES, ** neuropathy; brachial plexopathy; ** peripheral nerve microvessel Respondent. ** inflammation. * RRR KKK KR KK KKK RK KR RK Re Milton Clay Ragsdale, Ragsdale LLC, Birmingham, AL, for petitioner; Bridget Corridon, United States Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION!

On June 27, 2022, the parties filed a joint stipulation concerning the petition for compensation filed by Robert Stern on September 25, 2020. Petitioner alleged that the influenza (“flu”) vaccine he received on October 29, 2018, which is contained in the Vaccine Injury Table (the “Table’’), 42 C.F.R. §100.3(a), caused him to suffer lumbosacral radiculoplexus neuropathy and brachial plexopathy associated with peripheral nerve microvessel inflammation. Petitioner further alleges that he suffered the residual effects of this injury for more than six months.

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.

' The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website.

Respondent denies that the vaccines caused petitioner to suffer from lumbosacral radiculoplexus neuropathy, brachial plexopathy associated with peripheral nerve microvessel inflammation, any other injury, or his current condition.

Nevertheless, the parties agree to the joint stipulation, attached hereto. The undersigned finds said stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

Damages awarded in that stipulation include: A lump sum payment of $125,000.00 in the form 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).

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment according to this decision and the attached stipulation.’

IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master

? Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.

THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

ROBERT STERN, Petitioner, Vv. No. 20-1270V Special Master Moran SECRETARY OF HEALTH AND ECF HUMAN SERVICES.

Respondent.

STIPULATION The parties hereby stipulate to the following matters: 1. Robert Stern (“petitioner”) filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to -34 (the “Vaccine Act”). The petition secks compensation for injurics allegedly related to petitioner's receipt of an influcnza (‘flu’) vaccine, which vaccine is contained in the Vaccine Injurv Table (the “Table”), CER. § 100.3(a). to . Petitioner received a flu vaccine on October 29,2018.

Los . The vaccine was administered within the United States.

4. Petitioner alleges that he sustained injurics, including lumbosacral radiculoplexus neuropathy and brachial plexopathy associated with peripheral nerve microvessel inflammation, caused by his flu vaccination. He further alleges that he experienced residual effects of this alleged injury 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 alleged condition.

6. Respondent denies that petitioner sustained the injuries noted above; denies that the vaccine caused petitioner's alleged injurics or any other injury; and denies that his current condition is a sequela of a vaccine-related injury.

7. Maintaining their above-stated positions, the parties nevertheless now agrec 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 clection to reccive compensation pursuant to 42 U.S.C. § 300aa-21 (a)(1), the Secretary of Health and Human Serviccs will issue the following vaccine compensation payment: A lump sum of $125,000.06 in the form ofa check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-1 5{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. 8 300aa-2 H(a)(1), and an application, the parties will submit to further proceedings before the special master to award reasonable attomeys’ fees and costs incurred in proceeding upon this petition.

10. Petitioner and his attorncy represent that they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(y). including State compensation programs, insurance policics, Federal or State health bencfits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or entities that provide health services on a pre-paid basis.

It. Payment 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-1 S(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 of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (hb).

13. In return for the payments described in paragraphs 8 and 9, petitioncr, in his individual capacity and on bchalf of his heirs, executors, administrators, successors andor 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. § 30Uaa-L0 ct 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 or about October 29, 2018, as alleged by petitioner in a petition for vaccine compensation filed on September 25, 2020, in the United States Court of Federal Claims as petition No. 20-1 270V.

14. If petitioner should dic 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.

IS. 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 im complete conformity with the terms of this Stipulation, then the partics’ 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 partics 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, thata 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 flu vaccine caused petitioner's alicged injuries and/or any other injury.

18. Allrights and obligations of petitioner hercunder shall apply cqually to petitioner’s heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION Respectfully submitted, PETITIONER: a ROBERT STERN ATTORNEY OF RECORD FOR PETITIONER: M. CLAY RAGSDALE Ragsdale LLC Beacon Parkway West Birmingham, AL 35209 (205) 290-6800 [email protected]

AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES: George R. Grimes - _ Disitalty signed by George R Grimes -S14 $14 Date: 2022.06.15 07:23:03 -04°00" CDR GEORGE REED GRIMES, MD, MPH Director, Division of Injury Compensation Programs Health Systems Bureau Health Resources and Services Administration U.S. Department of Health and Human Services 5600 Fishers Lane, 08N146B Rockville, MD 20857 Dated: v|14 lu AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL: db Sf eo AN

HEATHER L. PEARLMAN Deputy Director Torts Branch Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 ATTORNEY OF RECORD FOR RESPONDENT: Ai YA (WM AA BRIDGET A. CORRIDON - Trial Attorney Torts Branch Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 (202) 305-4117 [email protected]