Poulin v. Secretary of Health and Human Services

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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-0667V

RONALD POULIN, Chief Special Master Corcoran Petitioner, v. Filed: June 18, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On June 15, 2022, Ronald Poulin 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 left shoulder injury related to vaccine administration as a result of an influenza (“flu”) vaccine he received on October 28, 2021.

Petition at 1; Stipulation, filed at June 18, 2024, ¶¶3-4. Petitioner further alleges that he suffered the residual effects of her SIRVA injury for more than six months. Petition at 1; Stipulation at ¶4. Respondent agrees that “Petitioner sustained a left shoulder injury related to vaccination administration (‘SIRVA’) within the time period set forth in the Table following receipt of the flu vaccine and experienced the residual effects of a SIRVA injury for more than six months.” Stipulation at ¶ 4. Respondent further agrees that there is not a preponderance of the evidence demonstrating that Petitioner’s injury is due to a factor unrelated to vaccination, and thus Petitioner is entitled to compensation under the terms of the Vaccine Act. Id.

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).

On June 18, 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 $47,500.00, 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

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.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) RONALD POULIN, ) ) Petitioner, ) ) No. 22-667V V. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. )

STIPULATION The parties hereby stipulate to the following matters: I. Ronald Poulin, petitioner, filed 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 for injuries allegedly related to petitioner's receipt of an influenza ("flu") vaccine, which is a vaccine contained in the Vaccine Injury Table (the "Table"), C.F.R. § I00J(a).

2. Petitioner received the flu vaccine on October 28 , 2021. 1 3. The vaccination was administered within the United States.

1 On November 18, 202 I, petitioner received a COVID-19 booster vaccine. Vaccines against COVID-19 are not contained in the Vaccine Injury Table. See 42 U.S.C. § 300aa-14 and 42 C.F.R. § I00.3(a). Pursuant to the declaration issued by the Secretary of Health and Human Services under the Public Readiness and Emergency Preparedness Act (42 U.S.C. §§ 24 7d-6d, 247d-6e), claims for alleged injuries from COVID-19 countermeasures, including vaccines, may be compensable under the Countermeasures Injury Compensation Program ("CICP"). See 85 Fed. Reg. 15198, 15202 (March I 7, 2020).

4. Petitioner sustained a left shoulder injury related to vaccination administration ("SIRVA") within the time period set forth in the Table following receipt of the flu vaccine and experienced the residual effects of a SIRVA injury for more than six months.

5. There is not a preponderance of evidence demonstrating that petitioner's injury is due to a factor unrelated to vaccination.

6. Petitioner represents that there has been no prior award or settlement of a civi I action for damages on petitioner' s behalf as a result of petitioner's condition.

7. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine Act for her SIRVA Table injury. Therefore, a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation.

8. As soon as practicable after an entry of judgment 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)(l ), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of$47,500.00 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- l 5(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)(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.

I 0. Petitioner and petitioner's attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa- l 5(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 . Payment made pursuant to paragraph 8 of this Stipulation 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, and past unreimbursed expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S .C.

§ 300aa- I 5(g) and (h).

13. In return for the payments described in paragraphs 8 and 9, petitioner, in petitioner ' s individual capacity, and on behalfof petitioner' s heirs, executors, administrators, successors or assigns, (a) 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 hereafter could be timely brought in the Court of Federal Claims, under the Vaccine Injury Compensation Program , 42 U.S.C. § 300aa-10 et seq ., (i) 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 that may be alleged to have resulted from , the vaccinations administered on October 28 and November 18, 2021 , and (ii) that petitioner has had, now has, or

16. Thi s Stipulati on expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vacc ine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is abso lutely no agreement on the part of the parti es hereto to make any payment or to do any act or thing other than is herein express ly stated and clearl y ag reed to. The parti es furth er ag ree and understand that the award described in thi s Stipulation may refl ect a compromise of the parties ' respective pos itions as to the amount of damages, and furth er, that a change in the nature of the injury or conditi on or in the items of compensati on sought, is not gro unds to modi fy or rev ise thi s agreement.

17. The Sti pulati on shall not be construed as an admi ssion by the United States or the Sec retary of Health and Human Services that the flu vacc ine caused petitioner's shoulder injury or any other injury or her current conditi on; however, petiti oner has sati sfi ed the Table criteria to establi sh entitl ement to compensati on.

18. All rights and obli gati ons of petiti oner hereunder shall apply equally to petiti oner's heirs, executors, admini strators, successors, and/or ass igns.

END OF STIPULATION

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