Blake v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1398V UNPUBLISHED

DIANE BLAKE, Chief Special Master Corcoran Petitioner, Filed: August 30, 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)

Andrew Donald Downing, Downing, Allison & Jorgenson, Phoenix, AZ , for Petitioner.

Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On October 15, 2020, Diane Blake 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 she suffered cardiomyopathy and nerve injury to her right shoulder/arm (SIRVA), which were caused-in-fact by the influenza (flu) vaccination she received on December 18, 2019. Petition at 1, 4; Stipulation, filed at August 26, 2022, ¶¶ 1-2. Petitioner further alleges that the vaccination was administered within the United States, she experienced residual effects of this injury for more than six months, and no civil action for damages as a result of her adverse reaction has been brought, nor has any settlement or award in a civil action for damages for her vaccine- related injury been previously collected. Petition at 1, 4; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner sustained a SIRVA Table Injury, denies that [P]etitioner’s alleged shoulder injury was caused-in-fact by the flu vaccine, denies that [P]etitioner’s alleged Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). nonischemic cardiomyopathy was caused-in-fact by the flu vaccine, and denies that the flu vaccine caused [P]etitioner any other injury or her current condition.” Stipulation at ¶ 6.

Nevertheless, on August 26, 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 $45,000.00 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

DIANE BLAKE, ) ) ) Petitioner, ) No . 20-1398V (ECF) ) Chief Special Master Corcoran v. ) ) SECRET ARY OF HEALT H ) AND HUMAN SERVICES, ) ________________ Respondent. ))

STIPULATION The parties hereby stipulate to the following matters: I. D iane Blake, petitioner, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C . § 300aa-10 to -34 ("Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of the influenza (" flu") vaccine, which vaccine is contained in the Vaccine Injury Table ("Table"), 42 C.F.R. § 100.3(a).

2. Petitioner received the flu vaccination in her right shoulder on December 18, 20 19. 1 3. The vaccine was administered within the United States.

4 . Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration ("SIRVA") within the time period set forth in the Table, and that she experienced residual effects of this injury for more than six months. Petitioner also alleges that her receipt of the flu vaccine caused her to develop nonischemic cardiomyopathy.

1 Petitioner also received a pneumococcal polysaccharide ('' Pneumovax 23 ") vaccination in her right shoulder on the same date. Pneumococcal polysaccharide vaccines are not contained in the Table.

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 petitioner's alleged shoulder injury was caused-in-fact by the flu vaccine, denies that petitioner's alleged nonischemic cardiomyopathy was caused-in-fact by the flu vaccine, and denies that the flu vaccine caused petitioner any other injury or her current condition.

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 ofjudgment reflecting a decision consistent with the terms of th is Stipulation, and after petitioner has filed an election to receive compensation pursuant 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 $45,000.00 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-l 5(a).

9. As soon as practicable after the entry ofjudgment 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. § 300aa-21 (a)( I), and an application, the parties will submit to further proceedings before the special master to award reasonable attorney 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 (otherthan 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. 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 attomeys further agree and stipulate that, except for any award for attorney 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 itTevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions, 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 vaccines administered on or about December 18, 2019, as alleged by petitioner in a petition for vaccine compensation filed on October 15, 2020, in the United States Court of Federal Claims as petition No. 20-i 398V.

14. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties.

15. If the Chief Special Master fails to issue a decision in complete confonnity with the tenns of this Stipulation, or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete confo1mity with the tenns 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 othe1wise 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 th ing other than is herein expressly stated and clearly agreed to . The parties further agree and understand that the award described in th is 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 Serv ices that the flu vaccine caused petitioner's alleged shoulder injury, nonischemic cardiomyopathy, or any other injury, 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 I I I I

Respectfully submitted,

ATTORNEY OF RECORD FOR AUTHORIZED REPRSENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

A ~!J:;j Downing, Allison & Jorgenson ~~~e~ HEATHER L. PEARLMAN Deputy Director National Vaccine Injury Lawyers Torts Branch 3030 North Central Avenue, Suite 507 Civil Division Phoenix, Arizona 85012 U.S. Department of Justice (480) 701 -0999 P.O. Box 146 [email protected] Benjamin Franklin Station Washington , DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Digitally signed by George R. George R. Grimes •S 14 Grimes -514 Date: 2022.07.29 11 :12:20 -04'00' CDR GEORGE REED GRIMES, MD, MPH ~ ---/7#~ BENJAMIN P. WARDER Director, Division oflnjury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O . Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08N 146B (202) 532-5464 Rockville, MD 20857 [email protected]

Dated: 08/ztojz ozz