Pollack v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1262V

RICHARD POLLACK, Chief Special Master Corcoran Petitioner, Filed: September 30, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jessica Ann Wallace, Siri & Glimstad, LLP, Aventura, FL, for Petitioner.

Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On April 21, 2021, Richard Pollack 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 shoulder injury related to vaccine administration (“SIRVA”) resulting from a tetanus diphtheria acellular pertussis (“Tdap”) vaccine received on October 15, 2020. Petition at 1; Stipulation, filed September 30, 2024, at ¶¶ 2-4. Petitioner further alleges that the Tdap vaccine was administered in the United States, he suffered residual effects of his injury for more than six months, and neither Petitioner, nor any other party, has ever filed any action or received compensation in the form of an award or settlement for his vaccine-related injury. Petition at ¶¶ 4, 15- 17; Stipulation at ¶¶ 3-5; Ex. 2. “Respondent denies that petitioner sustained a SIRVA Table injury, and further denies that the Tdap vaccine caused petitioner’s alleged left shoulder injury, any other injury, or his current condition.” Stipulation at ¶ 6.

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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.

2 National 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 (2018).

Nevertheless, on September 30, 2024, 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 $30,000.00 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.

3Jn tbe ffl:nite.b ~taltj QCourt of jfeberal Oaim1 OFFICE OF SPECIAL MASrl 'lt:RS

RlCHARD POLLACK, Petitioner, Case No. 2 J-1262V (ECF) V. CHIEf SPF..CIAT. MASTER CORCORAN SECRETARY OF Ht<.AI.TH AND HID,1A.J.'l SERVIC!::S1 Respondent.

STJruLATION The parties hereby stipulate to the following matters; l. Richard Pollack. petitioner, fik--d a petition for vaccine compensation w,dcr the National Vaccine ltlju,y Ccrrnpensw.ion ?nit-;."l"am, 42 U.S.C. §§ 300aa-l0 to -34 (the u.vaccfnc Program'!"). The petition seeks compensation for injuri~ ullegcd]y related to pedtioner►s receipt of the tetanuc., d.ipl1thei-ia, and n<;cll ular pertussis ("Tdap") vaocine, wh.icl, rs a vaccine oonwincd in the Vaccine Injury Table (the "Table"}, 42 C.F.R ~ 100.3(a).

2. Pet.jtioner received the Tdap vaccine on October 15, 2020.

.~. Tbc vaccination tvas administered. within tl'le United States.

4. PetitioneJ" aJ leges that he sustained a Jcfi shoulder tnj Ul)' related to vacc.ine 11J.r.u.i.uis1raLiur1 (..Si RV A·, wilhin the T~"blc time -period after rece1v:Lng u1~ Td.ap ~iccinc, and alleges that he experienced the residual effects of this injury for more than sh:: months, 5. PetitiOnl'.T f(.-prcscnts that there has been no prior award or ~tllcmc:nt of a civil acti<)fl for damltgcs on his behalf as a result of hls :alleged i:njuries.

6, Respondent ck.-'Dies that petitioner sustained a STRVA Table iaj ury, and further denies that the Tdap vaocine caused petitioner's alleged left shoulder injury, any other injury, or his e-urrent condition.

7. 1'.fuintaining tlleir ahove-siated pusitions, lhc parties nevertheJess now agree that the issues benvee-n lhcm shall be settled and tJ1ac a deci~c,>n should be entered awarding the compensatlon descrlhed in pan-igraph 8 of this Stipulation.

8. As :;ocm liS practicabJe after an entry ofjudgmcnl reflecting a decisitm cou~i~cnl with the terms of this Stipulation, and after petjlioncr h..,s filed an election to rece,i ve compeniwion pursuant to 42 U.S,C. § 300aa~2l (a)(l), the ~ecrclar)· oJHealth and Human Services will issue the following vaccine compensation payment: A lump sum of $30,000.00 irl the forr.n of a check payable to petitr()ner. This amount represen~ compensatfon tor- all dama.ges that would be available undc..,.

42 U.S.C. § 300aa-15{a).

9. As soon as practicable aO:cr lhc c:ntr)' of judgment in this c.asi:. und after petitioner has filed both a ptoper m1d timely dcction to receive compensation pursuant lO U.S.C. § 300aa-2 I (aXl ), and an application. the pa1ti~ will submil to funher proceed,,,~ before the special mast.er to award reasonable atmmey~~ fees and costs incurred in proceedlng upon th-is petition.

I 0. P~titioner and his attorney :represe11t ~ rompe-osatfo.n to be provided p,m;uunt to this Stipulation is not for any iltmis or services for which the Program is not primarily Hable under 42 U .S.C. § 300aa-15(gJ. to the extent that paymcnl .has been made or can rea.~nably be expected to be made Uflder any State oompcri:salian programs, insurance p<tlic1cs1 Federal or State nealtll benefil!:I programs (other than 'f'itle XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that pru,•idc bcalth services on a pre-paid basi.,;.

l I. P.dyment made pursuant ta paragraph S of this Stipu.la:tion and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made it1 accordance with U.S.C. ~ 30Oaa.-15(i); subject to the availability of sufficient statutory funds.

12. The parties and their anom~yli further agree alld Slipulate lhaL except tor an}' award for attomi:y::,' fcc-s and litigatl011 co-,;.t.1s, and past llllteimbursed expenses, the m-0ney provided pnr.s.uru,t lo this Stipulation will be LL-.cd wlcly for the benefit orpcti tioner as conccmplaled by a strla et1natruction of 42 U.S.C. § 300aa-t S{s) and (d), and subject w lhc conditions of 42 lJ.S.C. § 3O0aa• J5(g) and (h).

13. In return for the p,3yments described in pw-ugra.pbs 8 and 9, petitioner, in hls lndivldual capacity, amtl on be.half of his hctrs, executors, Rdminist.ra.tors, succe1s:,;.rm: or assignsi docs forever irrevocably a.od unconditi-onally releai.e, acq,uit, and discharge the Unhed States and the Secretary of Health and Human Services from any and all actions or causes of action (illCluding agreement~judgment'-, claims. damages._ Joss of services, expenses and all demand~ of ·wtiatev(..-r k..in.d or nature) that have been brought. could have been brou~ or couJd he timely htoughl in the Court of Federal Claim~. und~ the National Vaccine Tnjury Compensation Program, 42 U.S.C. § 300aa~10 et seq. , on acrount of, or in any way gtO\ving out oft any and all known or l,Jl)k:n,u,,.,n, suspected. or unsuspected JX.,'Tscmal inj t.JJies.to or death of petifomer resulting from, or all(:ged lo have resulted from, the Tdup vaccination administered on October I 5, 2020. as alleged by petitiona in a petition for vaccine compensation fUed on or aboul April 21, 2021. ia the United States Court offederuJ Claims as petition No. 21-1262V, 14, 1f petitioner should die prior to -entry of judg:rm;n~ Ulis agreement shall he voidahle upon proper notice to the Court on l'K.--ludf of either or both of the parties.

15. If ilie special master fails to issue a detisi-0n 1n complete conformity with the lcm1S of this Stipu!Htion or if the Col.lrt uf Federal CJaims tails to enter judgrruml in confonnicy with a decision that is in complete conformity with tnc terms of this Stipulatiolli, lhea the: parties' settlement and this Stipulation shall be voidable at Lhe .sole discretion of dlher party.

J 6. Thu. Stipulation expr~ses a full and complete negoliarod settlement of liability an<J damages claimed w1det the National Childhood Vaccine Inj LIi'}' Act t)f 1986. as amended, except as uthcr\llise noted in paragraph 9 above. lbere is absoJutely no agreement on the part of th~ parti<:s ht:rcto lo make any payment. or co do any act or thing otJ-ic..-r than is herein exprt:'!:IS]y ~us1c<l and clearly agreed to. The parties f wther agree and understand that the award d.escrlbed in chis Stipulation rt1a.y rcner-ct a compromise ofthe parties' respective posit.itms as to Jiability .ruld/or amounc of ~~~ 1 and further~ that a change in the nature of the injury or c<mdition or in thf: hems of compensation so~ is not growids to modify or revise this agreement, 17, lbis Stipu.1.ation shall ool be construed aE: an admission by the United Stut.cs o.r the Secretary of Health and Human Secvices thut the Tdap•vaccine caused petitionex's aJleged leH shoulder ir9u:ry or any other injury ot his current condition, or tha~ petitioner suffe.r ed an fnjrny {~onlHine-d in the Vaccine ll'ljury Table.

18. All rights attd obligations of petiUoneI" hereunder shall apply equally to petitioner~~ hei~~executors> ttdministrator~, !.>uocessors. and/or 0.">..4-:ign~.

END OF STIPULATION

Respcttfully submitt~~ PETITIONER: , - - -- ~ , r ~: ~~ '\·:.({AE- \\ ruc~,ARD POLLACK .)

A'JT0RN EY OF RECORD FOR AlITHOR IED RF.PRESEN'l'A TIVE PETITIONER: OF THE ATT0RNI .:Y GENERA L; 4v ~\hP eclM M---: : JIEATHER L. PEARLMA N Court..~J ti)r Pc:ti~ioner Depwy Director Sirl Glim.~tad, U.P Tort.-. Or.rrn;;h, Civil Division 20200 West Dixie Highway, Suite 902 U.S. Department of Justice Avent um, FL 3 3180 P.O. Box 14(, [email protected] Rcnjamin Franklin Swjon (78.6) 410-6930 Wasbingto11; DC 20044-0146

AllTHOR17.F.0 REPR£SE NTATIVR A'rl'0NEY OF RECORD FOR O¥THESF .CRETAR YOF HEAi.TH RESPONDENT: AND HlThlAN SERVICES: ~ly$lgned b-/ Jeffrey S· Jeffrey S, U..,ch -S Beach -S ~~02A-.09.1 1 oa:s5;54 for CAPT GEORGE REED GRIMES, MD, MPH :MARK K. HF.LI .IE Director~ Division of Injury 'l'rlal Attorney Compensation Program~ Torts Branch, Ci vii Division I lcallh Systems Bureau U.S. Departmenc of Justice I lculth R csources and P.O. Rox 1'16 Scn•i~:; Administration Benjan1111 Franklin Station U.S. Departmt.-nl of Health and Wa~hington, DC 20044-014 6 I luman Senrices mm.hellie @usdoj.go v 5600 Fishe~ t.-anc,08W•25A (202) 616-4208 Roc.kvHle, MD 20857

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