Cleaver v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-245V

DREAMA CLEAVER, Chief Special Master Corcoran Petitioner, Filed: September 24, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Glen Howard Sturtevant, Jr., Rawls Law Group (Richmond), Richmond, VA, for Petitioner.

Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On February 21, 2023, Dreama Cleaver 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 a shoulder injury related to vaccine administration (“SIRVA”), a Table injury, resulting from a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine she received on February 24, 2022. Pet., ECF No. 1. Petitioner further alleges that the vaccine was administered in the United States, she experienced the residual effects of her condition for more than six months, and there has been no prior award or settlement of a civil action for damages on Petitioner’s behalf as a result of her condition. Id. Respondent denies “that [P]etitioner sustained a SIRVA Table injury; denies that the vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.” Stipulation at 2, ECF No. 28.

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.

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 24, 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 $35,000.00 in the form of a check payable to Petitioner.

Stipulation at 2. 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

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.

I~ THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

DREAMA CLEAVER.

Pet it ioner, No. 23-245V Chier Special Masler Corcoran V. ECF SECRET1\RY OF l lc/\LTH AND HUMAN SERVICL:S.

R.!spondcnt.

STIPULATION The parties hereby stipulate to the fol lowing matters: 1. Dn::ama Ckawr (..petit ioner''), tilc:<l a petition for vm;cinc compensation under the National Vaccine Injury Compensation Program, 42 U .S.C. § 300aa-I0 to-34 (the ·'Vaccine Progra111"J. The pl!titiun s.:eks compitnsation for injuries allegedly related ro petitioner's receipt of a T ctanw,-D1plr theri.i-1kdlular-Pcrtussis (..Tdap'' ) vaccine, which vaccine is wntaint!d in the Vaceinc Injury Table: (tile ..·1abk"), 42 C.F.R. § I 00.J(aJ.

3. ·1lie vaccine was atl111i11 istt:red within the Unitt:c.l Statc:s.

4. J>et itil)ncr allege~ that she sustained a shoulder injury related to vaccine administration ('"SIRVA " ) w 11h in the t I111c: pcrioJ set forth in the Tabk, or in 1he al1ernuri ve, 1hu1 her al kgt:d shoulder injury was caused by the vaccine. She funhl!r alleges Lha1 she l!xperienced the residual effects of this condition tor mor\:! than six months.

5. Pcti1io11er repr...:s...:I11s that ther...: has been 110 prior award or settkment or a civil .11.:tion for damages on her bcliall°as a n~sull or lier alleged injury.

6. R...:spom.knt denies that petitioner sustained a SIRVA Table injury; denies that the vaccine causeJ petitioner's alleged shuul<.kr injury, or any other injury; and denies that her current condition is a sequ~la or a vaccine-related injury .

7. :vtailllaining their above-stated positions, the parties nevertheless now agree that the issues between the111 shall bl! sctlled and that a decision should be entered awarding the compensation described in paragraph 8 or this Stipulation.

l->. As soon as pra...:ti...:able alh:r an entry ol'_judgmenl rellec1ing a decision consistent with the ter11Js ol° th is S1 ipubt1u11, and alh:r pctitiuner has likd an ckctio11 to n.:c...:i vl:! compensation pursuant tu -42 U .S.C. ~ JUUaa-2 I (a)( I), 1he Secn:tary of Health and Human Services will issue the following.\ a...:ci11...: coinpensation payrne11t: A lu111p sum oi'$35.UOU.OU i11 the form ol'a check payable to petitioner. This amount n.:presents compensation for all damages that would be available under 42 U.S.C . § 300aa- I 5(a) .

9. A:- suon as practicable after the entry of judgment on entitlement in this case, and after petitioner has tikd both a proper and timely election to receive compensation pursuant to 42 U.S.C. *3UUaa-2 I (a)( I). und ~111 application , the purties will submit to further proceedings before the special mush:r to award reasonable attorneys' fees and costs incurred in proceeding upon this petition I 0. l'ct1tio111.:1 and lier atll>rlle) r...:pres...:111 1hu1 Cl>ll1pensa1ion lube pnl\ ided pursuant to this Stipulatiun is nut 11.>r any ill!lllS ur Sl!l"\•ic...:s for whi..:h the Program is nu1 primarily liable under 42 U.S.C ~ ]0Uaa- I 5(g), 10 the extent that pay111i.:11t has been made or can reasonably be expected 10 bt: made under any State compe11satio11 programs, insurance policies, Federal or State health benelits programs (other than Title XIX or the Social Security Act (42 U.S.C. § 1396 c:t 1'c.'Lf . )J . orb) entities 11la1 provide hl;!alth sen•it:l;!S on a pre-paid basis.

I I. Payrne111 made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph') u!'tllis St1pula1ion will be mm.le in accordance with 42 U.S.C. ~ 30Uaa-15(i). subject to the availability o!'-;ul'Jicie11t statutory funds .

12. The parties and their attorneys further agree and stipulate that, except for any award for attorney ' -; ll'.es a11d litigation costs. and past unreimbursable expenses. the money prm·ided pursuant to this Stipulation will be used solely for the beneli1 of pe1i1io11er as comemplated by a strict construction or 42 U S.C. ~ 300aa- I 5(a) and (cl) , and subject to the conditions of 42 U .S.C . *300aa- l 5(g) and l h ).

13. In re1urn for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on bd1al r oi" her heirs. execu1ors. ad111inistra1ors. successors or assigns. does forewr irrevucably and uncundiliunally rckase, acquit and dischargi.: the L' nited Stalt:S and the Secretary u1· I lea Ith and l lurnan Servi<.:es from any and ult u<.:tions or causes of m:tion (including. agri.:i.:111i.:111s. ,1udg111e111s, claims. damages. luss uf services. e»pense:-. und all demands of whale\ i.:r kind ur naturi.:) 1l iat have been broughl. could have been brought, or could be timely brought in the <.'nun ur 1:ederal Claims, under the National Vaccine Injury Compensation Progni111, 42 U S.l'. ~ 30Uaa- IO et seq ., un account uf, or in any way growing out of, any and all known ur unknown, suspectt:<l or unsuspected personal injuries to or death of petitioner resulting from, ur alkgcd to have resulted frurn, the Tdap va<.:cina1ion administered on February 24, 2022, as al lcgcd i 11 u pcl i t1u11 fur \ acci ne cu111pensa1ion Ii led on February 2 I. 2023 , in 1he United States Court or Federal Claims as petition No. 23-245V.

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

15. If the Chier Special Master fails Lo issue a decision in complete conformity with the terms ol"this Stipulation or irthe Court of Federal Claims tails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties' selllemenl and thi~ Stipulation shall be \-oidable al the ~ole discretion or either party.

16. This Stipulation expresses a full and complete negotiated selllernenl of liability and damages claimed umt.:r tile National Childhood Vaccine Injury Act or I98(J, as amended, except as othcnvise noted 111 paragraph 9 abo v.:. There is absolutely no agreem.:nt on the part or the parties hereto Lo make any payment or Lo 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' respecti ve positions as Lo liability and/or amount of du111ages, and further, that a change in the nature of the injury or condition or in the items of compensation sought. i::; nut grounds to mndify or revise this agreement.

17. This Stipulation shall nut be construed as an admission by the United States or the Secretary uf I kalth and l luman Services that the Tdap vaccine caused petitioner's alleged injury or any uther 111jur_) or her current di sabil ities. ur that pd1tiuner suffered an injury cnmu incd in the Vaccine Injury Table.

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

END OF STIPULATION

Respec1fully submi11ed, PETITIONER:

,)~~~ DREAMA CLEAER ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIO~ER: OF THE ATTORNEY GENERAL:

'iiif~E}iLg~lA A!V-----_ Rawls Law Group Deputy Director Rucketb Way, Suite IOU Torts Brunch Richmond, VA 2323 I Ci vil Division Tel: (804) 622-0675 U.S. Department of Justice E-mail : [email protected] P.O. Box 146 Benjamin Franklin Station Washing1011, DC 20044-U 146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey s. Digitally signed by Jeffrey S. Beach ·S ~~~~('" -$ Date: 2024.09.05 09:32:40 Beach ______ -04·00· for t \-t' O.V\C'( A · \'\CW'\ 8C'v\ CAPT GEORGE REED GRIMES, MD, MPI-I ELEANOR A . HANSON Director, Division of Injury Trial Attorney Comp~nsation Programs Torts Branch Health Systl!ms Bur<::uu Civil Division Health R~sourccs un<l Services U.S. Department of Justice Administrntion P.O. Box 146 U.S. D1.!parlmc11 t of I l~ul th Benjamin franklin Station and I lu111an Sl.!rvici:s \Va::;hington, DC 20044-0146 5600 Fishc,s L1111:, UXW-25A Tel : t202) 305-11 10 Rockvilk . .'VID 2UX57 L:-111ail: Eleanor.I lanson(~us<loj .guv