Hernandez v. Secretary of Health and Human Services

In the Anited States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-180V (not to be published) 2k 2K ok 2k ok 2k ok 2k ok ok ok ok ok ak ok ok ok ok ok ok ok ok ok ok Ok * MISTY HERNANDEZ, : * Filed: July 11, 2022 Petitioner, * * * V. * Decision by Stipulation; Damages; * Influenza (“Flu”) Vaccine; Shoulder SECRETARY OF HEALTH AND : Injury Related to Vaccine Administration HUMAN SERVICES, » (“SIRVA”). * Respondent. * * * 2h 2K Ok Ok ok ok ok ok OK OK ok ok ok Ok Ok OK OK OK OK OK Ok OK OK OK OK Jeffrey Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner Nancy Tinch, U.S. Department of Justice, Washington, DC, for Respondent DECISION ON JOINT STIPULATION!

On January 31, 2019, Misty Hernandez (“Petitioner”) filed a petition, seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program’).” Pet., ECF No. 1. Petitioner alleges she suffered from a Table shoulder injury related to vaccine administration (“SIRVA”) as a result of the influenza (“flu”) vaccination she received on September 15, 2016. See Stipulation { 2, 4, dated July 6, 2022 (ECF No. 54); see also Petition.

Respondent denies “that petitioner sustained a SIRVA Table injury ; denies that the fl

' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”

Vaccine Rule 18(b). Otherwise, the Decision in its present form will be available. Jd. * The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.

No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa. vaccine caused petitioner’s alleged SIRVA, or any other injury; and denies that petitioner’s current condition is a sequela of a vaccine-related injury.” See Stipulation { 6. Nonetheless, both parties, while maintaining their above-stated positions, agreed in a stipulation filed July 6, 2022 that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation.

I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The stipulation awards: 1. A lump sum of $42,500.00 in the form of a check payable to petitioner; and 2. A lump sum of $948.07, representing reimbursement of a Medicaid lien for services rendered to petitioner by the State of Texas, Cigna Medicare STAR+PLUS, in the form of a check payable jointly to petitioner and The Rawlings Company: The Rawlings Company ATTN: PS AutoHx Reference No.: 119693643 P.O. Box 2000 La Grange, KY 40031-2000 Petitioner agrees to endorse this check payable to the Rawlings Company.

Stipulation J 8. This award represents compensation for all damages that would be available under U.S.C. § 300aa-15(a).

I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter judgment herewith.

IT IS SO ORDERED. s/ Katherine E. Oler Katherine E. Oler Special Master

> Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their right to seek review.

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

MISTY HERNANDEZ, Petitioner, v. No. 19-180V Special Master Oler SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: I. Misty Hernandez (“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. § 100.3 (a).

2. Petitioner received a flu vaccination on September 15, 2016.

3. The flu vaccine was administered within the United States.

A, Petitioner alleges that she sustained a Table shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table following administration of the vaccine. Petitioner 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 condition.

6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu vaccine caused petitioner’s alleged SIRVA, 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 pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue the following vaccine compensation payments: A. A lump sum of $42,500.00, in the form of a check payable to petitioner; and B. A lump sum of $948.07,' representing reimbursement of a Medicaid lien for services rendered to petitioner by the State of Texas, Cigna Medicare STAR+PLUS, in the form of a check payable jointly to petitioner and The Rawlings Company: The Rawlings Company ATTN: PS AutoHx Reference No.: 119693643 P.O. Box 2000 La Grange, KY 40031-2000 Petitioner agrees to endorse this check payable to The Rawlings Company.

These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

' This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Texas may have against any individual as a result of any Medicaid payments the Texas Program has made to or on behalf of petitioner Misty Hernandez as a result of her alleged vaccine-related injury suffered on or about September 15, 2016, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h).

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-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- 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.

11. 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 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 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 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-10 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, flu vaccination administered on September 15, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or about January 31, 2019, in the United States Court of Federal Claims as petition No. 19-180V.

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. Ifthe 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 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 the flu vaccine caused petitioner’s alleged SIRVA or any other injury or petitioner’s current condition, or that petitioner suffered an injury contained in the Vaccine Injury Table.

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

END OF STIPULATION Respectfully submitted,

PETITIONER: MISTY HERNANDEZ ATTORNEY OF RECORD FO AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: ath oe HEATHER L. Aaa Jeffrey S. Pop & Associates Deputy Director 9150 Wilshire Blvd., Suite 241 Torts Branch Beverly Hills, CA 90212 Civil Division (310) 273-5462 U.S. Department of Justice [email protected] 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: George R. Grimes Digitally signed by George.

Grimes -S14 -$14 Date: 2022.06.21 13:58:47 -04'00' CDR GEORGE REED GRIMES, MD, MPH Director Trial Attorney Division of Injury Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resource and Services Administration U.S. Department of Justice U.S. Department of Health and Human Services P.O. Box 146 5600 Fishers Lane Benjamin Franklin Station Parklawn Building, Mail Stop 08N146B Washington, DC 20044-0146 Rockville, MD 20857 (202) 305-2078 [email protected] Dated: July 5 2092