Smith v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-164V

TABITHA SMITH, Chief Special Master Corcoran Petitioner, Filed: July 15, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Bridget C. McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Austin J. Egan, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On January 6, 2021, Tabitha Smith 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”) after receiving a tetanus, diphtheria, and acellular pertussis (“Tdap”) vaccination on or about August 5, 2020. Petition at 1; Stipulation, filed at July 12, 2024, ¶¶ 2-4. Petitioner further alleges that she experienced the residual effects of this injury for more than six months and that there has been no prior award or settlement of a civil action for damages as a result of her alleged condition. Stipulation at ¶¶ 4-5.

“Respondent denies that petitioner suffered from left shoulder injury as a result of the Tdap vaccine, and denies that the Tdap vaccine caused her any other injury or her current condition ” Stipulation at ¶ 6.

Nevertheless, on July 12, 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 $20,000.00 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 ) TABITHA SMITH, ) ) Petitioner, ) ) No. 21-164V V. ) Chief Special Master Corcoran ) ECF S E C R E T A R Y O F HEALTH A N D H U M A N SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: 1. Tabitha Smith ("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 o f the tetanus, diphtheria, and acellular pertussis ("Tdap") vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a).

2. Petitioner received the Tdap vaccine on or about August 5, 2020.

3. The vaccine was administered in the United States.

4. Petitioner alleges that she suffered a left shoulder injury related to vaccine administration ("Sffi.V A") as a result o f receiving the Tdap vaccine. Petitioner further alleges that she experienced the residual effects o f 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 o f her alleged condition.

6. Respondent denies that petitioner suffered from left shoulder injury as a result of the Tdap vaccine, and denies that the Tdap vaccine caused her 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 this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $20,000.00 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-15(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 U.S.C. § 300aa-2l(a)(l), 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 they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), including 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 entities that provide health services on a prepaid basis.

11. Payment made pursuant to paragraph 8 o f this Stipulation and any amounts awarded pursuant to paragraph 9 will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability o f 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 unreimbursed expenses, the money provided pursuant to this Stipulation will be used solely for the benefit o f petitioner as contemplated by a strict construction o f 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions o f 42 U.S.C. § 300aa-l S(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, and assig n s, 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 o f action (including agreements, judgments, claims, damages, loss of services, expenses and all demands o f whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the United States 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, the Tdap vaccination administered on or about August 5, 2020, as alleged by petitioner in a petition for vaccine compensation filed on or about January 6, 2021 , in the United States Court of Federal Claims as petition No. 21-164V.

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

15. I f the special master fails to issue a decision in complete confonnity with the terms of this Stipulation or i f the United States Court o f Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the tenns o f this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion o f 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 o f the parties hereto to make any payment or 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 o f the parties' respective positions as to liability and/or amount of damages, and further, that a change in the nature o f the injury or condition or in the items o f compensation sought, is not grounds to modify or revise this agreement.

17. This Stipulation shaJJ not be construed as an admission by the United States or the Secretary o f Health and Human Services that the Tdap vaccine caused petitioner's left shoulder injury, any other injury, or her current condition.

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

END OF STIPULATION

Respectfully submitted, PETITIONER:

TABITHA SMITII

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATIORNEY GENERAL:

~ B ........... \__Moc R ...n.ri=UA n'Mt.'t Deputy Director Twinmg Road, Suite 2 8 Torts Branch Dresher, PA 19025 Civil Division Tel: (215) 885• 1655 U.S. Department of Justice Email: [email protected] P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OFTHESECRETARYOFHEALTH RESPONDENT: Jeffrey s •Jeffrey AND HUMAN SERVICES: Digitally signed by S. Beach -5

-Beach - S 08:55:04 -04'00' Date:2024.06.25 --- for CDR GEORGE REED GRJMES, MD, MPH A Director, Division ofinjury Trial Attome Compensation Programs Torts Branch, iv1 1v1s1on Health Systems Bureau U.S. Department of Justice Health Resources and Services P.O. Box 146 Administration Ben Franklin Station U.S. Department of Health Washington, DC 20044-0146 and Human Services Tel: (202) 451-7479 5600 Fishers Lane, 08W-25A Email: [email protected] Rockville, MD 20857

Dated: ,Ji, /.2, ,,/W