Johnson v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1025V

DAWN JOHNSON, Chief Special Master Corcoran Petitioner, v. Filed: June 12, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

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

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

DECISION ON JOINT STIPULATION1 On March 4, 2021, Dawn Johnson filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (the “Vaccine Act”). On or about October 26, 2020, Petitioner received an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a). Petitioner alleges that she sustained a left shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving the flu vaccine. Petitioner further alleges that she experienced the residual effects of this injury for more than six months.

Respondent denies that Petitioner suffered from a left shoulder injury as a result of the flu vaccine, and denies that the flu vaccine caused her any other injury or her current condition.

Nevertheless, on June 11, 2024, the parties filed the attached joint stipulation,3 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 $65,000.00 in the form of a check payable to Petitioner.

B. A lump sum of $500.00, representing reimbursement of a Medicaid lien for services rendered to Petitioner by the State of North Carolina, in the form of a check payable jointly to Petitioner and the North Carolina Division of Health Benefits: North Carolina Division of Health Benefits Office of the Controller 2022 Mail Service Center Raleigh, NC 27699-2022 Case Number: 367871 Petitioner agrees to endorse this check to the North Carolina Division of Health Benefits.

These amounts represent compensation for all items of damages that would be available under Section 15(a). Stipulation at ¶ 8.

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.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAl:\-1S OFFICE OF SPECIAL MASTERS ) DAWN JOHNSON. ) ) Petitioner. ) ) No. 21-1025V ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES. ) ) Respondent. ) __________________) STIPULATION The parties hereby stipulate to the following matters: t . Dawn Johnson {''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 allegedl)· related to petitioner's receipt of the influenza ("flu'') vaccine, which is contained in the Vaccine Injury Table (the "Table"). 42 C.F.R. § I00.3(a).

2. Petitioner received the flu vaccine on or about October 26. 2020.

3. The vaccine was administered in the United States.

4. Petitioner alleges that she suffered a left Shoulder Injury Related 10 Vaccine Administration (''SIRVA·•) as a result of receiving the flu vaccine. Petitioner funher alleges that she experienced the residual effects of th.is injury for more than six monchs.

5. Petitioner represents that there has been no prior award or settlement of a ci"il action for damages as a result of her alleged condition.

6. Respondent denies that petitioner suffered from left shoulder injury as a result of the flu vaccine, and denies that the flu vaccine caused her any other injury or her current condition.

7. Maintaining their above.stated positions. lbe parties nevertheless now agree tha1 the issues between them shall be settled and that a decision should be entered awarding the compcmati(m described in paragraph 8 of this Stipulation.

~. As soon as practicable after an entry of judgment reflecting a decision consistent with the tenus of this Stipulation. and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa..:? l(a)( I). the Secretary of Health and Human Services will issue the following vaccine compensation payments: A. A lump sum of $65.000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under-n U.S.C'. § 300aa.)5(a).

B. A lump sum of SS00.00. 1 representing reimbursement of a Medicaid lien for services rendered to petuioner by the State of North Carolina, in the fonn of a check payable jointly to petitioner and the North Carolina Division of Health Benefits: North Carolina Dh·ision of Health Benefits Office of the Controller 2022 Mail Service Center Raleigh. NC 27699.2022 Case Number: 367871 Petitioner agrees to endorse this check to the North Carolina State Division of Health Bendits. These amounts represent compensation for all damages that would be a\'ailable under -t2 U.S C. § 300aa• I 5(a).

9. As soon as practicable after the entry ofjudgment on entitlement io this case. and after petitioner has filed bo1h a proper 3..lld timely election to r\.-cei\'e compensation pursuant to.[! U.S.C.

This amount represent,;; full satisfaction of 3..llY right of subrogation. assignment. claim. lien. or cause of action that the State of North Carolina may have against any individual as a result of anv Medicaid payments that the State t.lf North Carolina has made to or on behalf of Dawn Johnson~ a result of her alleged ,·accine•related injury suffered on or about October 26. 2020. under Title XlX of the Social Security Act. .<:l!L' 42 U.S.C. § 300aa• 15(g). (h).

§ \001111 -~ 1(11 )(I). 111111 au 11ppltu11i1111. the pm·lk'I will suhmit 10 ti1r1hcr rrocecdings before the special "'"""'' tu t1\\·11HI ''-'lls111111hll• nllurncys· lcc-!I 1111tl l'O!lt!I incurred in proceeding upon this petition 10. l'l'1ttioncr 1111tl h,·r nlturncy rcpt'C!lent lhttt they have identified to respondent all known 'llllll'\'\'~ of p11ynwnt for items or !lct·vicc:,; for which the Progrnm is not primnrily liable under 42 \I .S.C. § .\001111- 15(1,t), including Stutc compcnsntion programs, insurance pol icics, Federal or State health henctits prol!,rnms (olhcr 1h1111 Title XIX of the Stici11l Security Act (42 U.S.C. § 1396 ct -.cq.)). or entities that 1mwi,tc health services on II prcpuid hnsis.

11 . Pnymcnl mmlc pursunnt 10 pnrngraph K of this Stipulution and any umounts awarded pursunnt 10 purngmph 9 will be mnJc in nccordnnec with 42 U.S.C. § 300ua-lS(i), subject to the 11v11ih1bili1y of sutlicicnl :-1tt1tutt1ry tune.ls.

12. The p11rtics und their attorneys further agree und stipulate that. except for any award for nttomcys • tees und litigation costs, und pu:it unrcimburscd expenses, the money provided pursuant to thi:. Stipulation will be used :ioldy for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300ua-l 5(a) and (d). and subject to the conditions of 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 bchalfofher heirs. executors. administrators. successors. and assigns, does forever i~vocably 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 United States Court of Federal Claims, under the National Vaccine Injury Compensation Program. 42 U.S.C. § ~OOaa-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 nu vaccination administered on or about October 26. 2020. af alleged by petitioner in a petition for vaccine compensation filed on or about March 4, 2021. in the ~ited States Cour1 of Federal Claims as petition No. 2 l - l025V.

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 fails to issue a decision in complete conformity with the terms of this Stipulation or if the United States Court of Federal Claims fails to enter Judgment in conformity with a decision that is in complete eonfonnity with the terms of this Stipulation, then the par1ie!i • settlement and this Stipulation shall be voidable ar the sole discretion of either party.

16. This Stipulation expresses a full and complete negotiated seulement 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 of 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 of the parties· respective positions as to Iiabil ity and/or amount of damages. and further. that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement.

17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the flu vaccme caused petitioner's left shoulder injury. any other injury, or her current condi11on.

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

END OF STIPULATION

Respectfully submitted, PETITIONF.R:

~ T O ATTORNEY OF RECORD FOR AUTHORIZED RErRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

~ f-T_, . •+S=-- Q-. -+-- -HEATHER J dL. PEARLMAN .e.~e~ LAW OFFICI! OF LEAH V. DURANT, PLLC Deputy Director 1717 K Street NW, Suite 900 Torts Branch Washington, DC 20006 Civil Division Tel: 202-775-9200 U.S. Department of Justice Email: [email protected] P.O. Box 146 Benjamin Franklin Station Washington. DC 20044-0146 AUTHORJZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRET ARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey S• Jeffrey Digitally signed by S. Beach -S Beach -s Date:_2024.~5-~8 ____ 11 :06.38 •04 oo tor CDR GEORGE REED GRIMES, MD. MPH Director, Division of Injury Trial Attorne Compensation Programs Torts Branch n Health Systems Bureau U.S. Oepart Health Resources and Services P.O. Box 146 Administration Ben Fmnklin Station U.S. Department of Health Washington, DC 20044-014(, and Human Services Tel: (202) 451 -7479 5600 Fishers Lane, 08W-25A Email : [email protected] Rockville, MD 20857

Dated: J W?e Jl )OJ 4 1-