Tate v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-0697V

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

Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.

Katherine Carr Esposito, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On May 10, 2023, Jennifer Marie Tate 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 left shoulder injury related to vaccine administration (“SIRVA”) and/or brachial neuritis resulting from a tetanus diphtheria acellular pertussis (“Tdap”) vaccine received on August 24, 2022. Petition at 1; Stipulation, filed July 15, 2024, at ¶¶ 2-4. Petitioner further alleges that the Tdap vaccine was administered in the United States, the residual effects of her injury have persisted for more than six months, and neither Petitioner, nor any other party, has ever filed any action, or received or accepted compensation in the form of an award or settlement, for Petitioner’s vaccine-related injury. Petition at ¶¶ 4, 24-26; Stipulation at ¶¶ 3-5.

“Respondent denies that petitioner sustained injuries including SIRVA and/or brachial neuritis; denies that the Tdap vaccine caused or significantly aggravated petitioner’s

Nevertheless, on July 15, 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) A lump sum of $25,000.00 in the form of a check payable to Petitioner; and b) A lump sum of $1,457.56, representing reimbursement of a Medicaid lien for services rendered to Petitioner by the Commonwealth of Pennsylvania Department of Human Services.

Petitioner agrees to endorse this check to the Commonwealth of Pennsylvania Department of Human Services and send it to the following address: Department of Human Services Bureau of Program Integrity Division of Third Party Liability Recovery Section Attn: Elyetta E. Knox P.O. Box 8486 Harrisburg, PA 17105-8486 Stipulation at ¶ 8. These amounts represent 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

JENNIFER MARIE TATE, Petitioner, No. 23-697V V, Chief Special Master Corcoran ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the fo llowing matters: I. Petitioner, Jennifer Marie Tate, fil ed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l Oto 34 (the "Vaccine Program"). The petition seeks compensation fo r injuries allegedly related to petitioner's receipt of a tetanus-containing vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § I 00.3 (a).

2. Petitioner received a tetanus-diphtheria-acellu lar pertussis ("Tdap") vaccine in her left deltoid on or about August 24, 2022.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she subsequently developed a shoulder injury related to vaccine admin istration ("SIRVA") and/or brachia! neuritis as a result of her vaccination. She further alleges that she has experienced residual effects of this injury fo r more than six months.

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 injuries including SIRVA and/or brachial neuritis; denies that the Tdap vaccine caused or significantly aggravated petitioner' s alleged left shoulder inj ury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.

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 of j udgment 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-2 l(a)(I), the Secretary of Health and I luman Services will issue the fo llowing vaccine compensation payments: (a) A lump sum of $25,000.00 in the form of a check payable to petitioner.

(b) A lump sum of $1,457.56, 1 representing reimbursement of a Medicaid Iien for services rendered to petitioner by the Commonwealth of Pennsy lvania, in the form of a check jointly payable to petitioner and the Commonwealth of Pennsylvania Department of Human Services.

Petitioner agrees to endorse this check to the Commonwealth of Pennsylvania Department of Human Services and send it to the fol lowing address: Department of Human Services Bureau of Program Integrity Division of Third Party Liability Recovery Section Attn: Elyetta E. Knox P.O. Box 8486 Harrisburg, PA 17105-8486.

This amount represents fu ll satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the Commonwealth of Pennsylvania may have against any individual as a result of any Medicaid payments made to or on behalf of petitioner as a result of her alleged vaccine- related injury suffered as a result of the vaccination administered on or about August 24, 2022, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-l 5(g), (h).

These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

9. As soon as practicable after the entry of judgment 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-21(a)( I), and an application, the parties will submit to further proceed ings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition.

I 0. 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 primari ly 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 (other than 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. Payments rnade pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa- l 5(i), subject to the availability of sufficient statutory funds.

12. The parties and their attorneys further agree and stipulate that, except for any award for attorneys' fees, and litigation costs, the money provided pursuant to this Stipulation wi ll be used solely 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 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 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 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-IO et seq., on account of, or in any way growing out of, any and all k11own or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resu lted from a Tdap vaccine administered on or about August 24, 2022, as alleged by petitioner in a petition for vaccine compensation filed on or about May 10, 2023, in the United States Court of Federal Claims as petition No. 23-697V.

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

15. If the special master fa ils to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of thi s Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party.

16. This Stipulation expresses a fu ll and complete negotiated settlement of liabi lity and damages claimed under the National Ch ildhood Vaccine Inj ury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is abso lutely no agreement on the part of the parties hereto to make any payment or to 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' respective positions as to liability and/or amount of damages, and fu rt her, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or rev ise this agreement.

17. Th is Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the Tdap vacci ne caused petitioner' s alleged injury or any other injury or her current disabilities, 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 I I I I I I I I I I I I I I I I I I I I I I I I I I I I Respectfu lly submitted,

PETITIONER:

J en~ ~10, 2024 11:00 COT) JENN IFER MARIE TATE

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

JI~ ' l~ HEIB Counsel for Petitioner • ,4A .1 ~ Qe.u.lJAIV::::::: HEATI-IER L. PEARLMAN Deputy Director Zgheib Sayad, P.C. Torts Branch South Broadway, 4th Floor Civil Division White Plains, NY I 006 1 U.S. Department of Justice Phone: (9 14) 729-1110 P.O. Box 146 Fax: (9 14) 729- 1134 Benjamin Frankl in Station j im(@.vaccinclawycrs.com Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey S. Digitally signed by Jeffrey S. Beach -S I< ~ ( A . . l C l.41X'M°O Beach -5 ______ Date: 2024.06.25 08·s8·22-04•00· fo r ~ J..Jt~ L P ~ ~ CDR GEORG E REED GRIMES, MD, MPH KATHERINE C. ESPOSITO Director, Division of Injury Trial Attorney Compensation Programs To1ts Branch Health Systems Bureau Civi l Division Health Resources and Services U.S. Depa1tment 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, 08W-25A Tel: (202) 305-3774 Rockville, MD 20857 Email: [email protected]

Dated: o:rltsfuz.,.,