Hillard v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-0791V

CAROLE HILLARD, Chief Special Master Corcoran Petitioner, Filed: September 20, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner.

Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1 On July 21, 2022, Carole Hillard 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”) following an influenza vaccination she received on September 21, 2020. Petition at 1; Stipulation, filed at September 19, 2024, ¶¶ 2, 4. Petitioner further alleges that she suffered the residual effects of her vaccine-related injury for more than six months. Petition at ¶ 16; Stipulation at ¶ 4. “Respondent denies that Petitioner sustained a SIRVA Table injury; denies that the vaccine caused Petitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on September 19, 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 $5,000.00 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

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

CAROLE HILLARD, Petitioner, V. No. 22-791 V (ECF) Chief Spec ial Master Corcoran SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipu late to the following matters: 1. On July 21 , 2022, petitioner filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program , 42 U.S.C. ~ 300aa-10 to -34 (the ·' Program"). The petition seeks compensation for an injury allegedly related to petitioner's receipt of the influenza vaccine, which vaccine is contained in the Vaccine Injury Table, 42 C.F.R. § 100.3(a) (the ''Table").

2. Petitioner received an influenza vaccine on September 2 1, 2020.

3. The vaccine was adm inistered within the United States.

4. Petitioner alleges that she suffered a left-s ided SIRVA as a result of her vaccination.

Petitioner further alleges that she experienced the residual effects of this 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 her all eged injury.

ENV41161845-6223-AECA-4344-FCDB 09/05/2024 18:06 PM UTC 6. Respondent denies that petiti oner sustained a SIRV A Tabl e injury; deni es that the vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.

7. Maintaining their above-stated pos itions, th e parti es nevertheless now agree th at the issues betwee n them shall be settled and that a dec ision should be entered awa rding th e co mpensation described in paragrap h eight of this Stipulati on.

8. As soon as practicable after an entry of judgment re fl ecting a decision consistent with the terms of this Sti pulation, and after petitioner has fi led an electi on to receive compensation pursuant to 42 U.S.C § 300aa-2 I (a)( I) , the Secretary of Hea lth and Human Services will iss ue the fo llowi ng vacc in e compensatio n payment : A lu rnp sum of $5,000.00 in the fonn of a chec1' payable to petitione r. This amount represents compensation fo r all da mages that wo ul d be available under 42 U.S.C § 300aa- 15(a) .

9. As soo n as practi cabl e after the entry of judgment on en titlement in thi s case, and after peti tioner has fil ed both a proper and timely election to rece ive co mpensa ti on pmsuant to 42 U.S.C. § 300aa-2 l(a)( I). an d an app licati on. the parties will submit to further proceedin gs he fore the spec ial maste r to award reaso nabl e attorn eys· fees and costs incuned in proceedin g upun thi s petiti on.

I 0. Petiti oner and her attorney represent tha t the co mpensation to be prov ided pursuant to thi s Stipulation is not fo r any items or services fo r whi ch th e Program is not primarily li able under 42 U.S.C. § 300aa- l 5(g), to the c.\ tent that payment has hee 11 made or c,111 reaso nabl y be ex pected to be made under any State co mpe nsat ion programs. in surance po li cies. Federa l or State health benefi ts prog rams (other than Titl e X IX of the Soc ial Sec urity Ac t (42 U.S.C. § 1396 et seq.)) , or by entities that provi de health services on a pre-paid basis.

ENV4 1161 845-62 23-AE CA-4344-F COB 09/05/2024 18 06 PM UTC 11. Payment made pursuant to paragraph eight and any amounts awarded pursuant to paragraph nine of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subj ect to the availability of sufficient statutory funds.

12 . The parties and their attorneys further agree and stipulate that, except for any award for attorney's fees and litigation costs, the money provided pursuant to this Stipulation will be used so lely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa- l 5(a) and ( d) , and subject to th e conditions of 42 U.S.C. § 300aa-15(g) and (h).

13. In return for the compensation described in paragraphs eight and nine, petition er, in her individual capac ity, and on behalf of her heirs, exec utors, adm inistrators, successors, or assigns, do cs forever and irrevocabl y and unconditionally release, acquit, and discharge the United States and the Secretary of Hea lth and Human Services from any and all act ions or causes of act ion (including agree ments, judgments. claims, damages. loss of services, expenses. and all dema nds of w hateve r kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the Na tional Vaccine Injury Compensation Program , 42 U.S.C. § 300aa- 10 et seq., on account of, or in any way grow ing out of, any and all known or unknown, suspected or unsuspected personal injuri es to or death of petitioner res ulting from, or alleged to have resulted from, the influenza vacc ination administered on September 2 1, 2020, as alleged in a petition for vaccine compensation filed on or about July 2 1, 2022, in the United States Court of Federal Claims as petition No. 22-79 1V.

14. If petitioner shou ld <lie prior to entry of judgment, this agreement shall be voidab le upon proper notice to the Co urt on behalf of either or both of the parties.

15. If the Chief Spec ial Master fails to iss ue a dec ision in complete confonnity with the tenns of this Stipulation or if th e Court of Federal Claims fails to enter judgment in confonnity

ENV41161845-6223-AECA-4344-FCDB 09/05/2024 18 06 PM UTC with a dec ision that is in complete conformity with the terms of this Stipul ation, then the parties' settlement and this Stipulation shall be voidable at the so le di scretion of either party.

16. Thi s Stipulation expresses a full and complete negot iated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, expect as otherwise noted in parag rap h nin e above. There is absolutely no agreement on th e part of the parties hereto to make an y payment or to do an y act or thin g other than is here in expressly stated and clearly agreed to. The parties fu11hcr ag ree and understand that the award described in this Stipul ati on may reflect a compro mi se of the parties ' respective positions as to li ab ility and/or amount or damages, and furth er. that a change in the nature of the injury or condi ti on or in the items of compensati on so ught. is not gro und s to modify or re\·isc this agreemen t.

17. Thi s Stipulation shall not be co nstrued as an ad miss ion by the Uni ted St ates ur th e Secretary of Hea lth and Human Services that the influenza \·acc ine ca used pditioner· s alleged injury or any other injury or hi s cunent di sab ili ties, or that petitioner suffered an injury conta ined in the Vaccine Injury Ta ble.

18. All ri ghts and obligations of petitioner hereunder shall app ly eq uall y to petitioner' s heirs , exec utors, administrators, successors, and/or ass igns.

END OF STIPULATIOl'i

ENV41161845-6223-AECA-4344-FCDB /05 12024 18 06 PM UTC Respectfully submitted, PETITIONER:

CAROLE HILLARD ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: /

~i1EffH ~~erf~LJ~ Atto ey Deputy Director Shannon Law Group, P.C. Torts Branch 6825 Hobson Valley Drive, Suite 101 Civil Division Woodridge, IL 60517 U.S. Department of Justice Telephone: (312) 578-9501 P.O. Box 146 [email protected] Benjamin Franklin Station Washington, D.C. 20044-0146

AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR THE SECRETARY OF HEALTH AND RESPONDENT: HUMAN SERVICES: George R. Grimes Digitallys ignedbyGeorgeR.

Grimes -S14 -S 14 Date: 2024.08.30 13:13:03 -04 '00'

CAPT GEORGE REED GRIMES, MD, MPH Director, Division of Injury Compensation Programs Health Systems Bureau ivil 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, D.C. 20044-0146 5600 Fishers Lane, 08W-25A (202) 616-0515 Rockville, MD 20857 joseph.leavitt@usdoj .gov

ENV41161845-6223-AECA-4344-FCDB 09/05/2024 18:06 PM UTC