Wallach v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-120V

ANYA WALLACH, Chief Special Master Corcoran Petitioner, Filed: June 14, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.

Mary Novakovic, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1 On January 6, 2021, Anya Wallach 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”), a Table injury, resulting from an influenza (“flu”) vaccine she received on November 18, 2019. Pet., ECF No. 1. Petitioner further alleges that the vaccine was administered in the United States, she experienced the residual effects of her condition for more than six months, and there has been no prior award or settlement of a civil action for damages on Petitioner’s behalf as a result of her condition. Id. Respondent denies “that [P]etitioner sustained a Table SIRVA injury; denies that the vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.” Stipulation at 2, ECF No. 47.

Nevertheless, on June 13, 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 2. 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

ANYAWALLACH, Petitioner, No. 21-120V Chief Special Master Corcoran V. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: 1. On January 6, 2021, Anya Wallach ("petitioner"} filed a petition for vaccine compensation under the National Vaccine lnjwy 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 of an influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the ''Table"), 42 C.F.R. § I00.3(a}.

2. Petitioner received the flu vaccine in her left ann on November 18, 2019.

3. The vaccine was administered within the United States.

4- Petitioner al1eges tha! she suffered from a sh9ulder injwy related to yaccine administration ("SIRVA") as a result ofreceiving the ffo vaccine. Petitioner alleges that she experienced the residual effects of this condition 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 condition.

6. Respondent denies that petitioner sustained a Table SIRVA 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.

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-21(a)(l), the Secretary of Health and Human Services will issue the following vaccine compe.qsation 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 42 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.

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 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. § I 396 et seq.)), or by entities that provide health services on a pre-paid basis.

11. Payment made 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-15(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-l 5(g) and (h).

13. In return for the payment 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 an 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. § 300 aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspecte.d personal injuries to or death of petitioner resulting from, or alleged to have resulted from the flu vaccination administered on November 18, 2019, ' .. - - 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. 21-120V.

14. If petitioner should die prior to entry ofjudgment, 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 confornuty with the tenns of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete confonnity with the tenns of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of 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 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 ~e award described in this Stipulation m~y reflect a compromise. of the parties' respective positions as to JiabiJity 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 Hwnan Services that petitioner sustained a SIRVA Table injury; that the flu vaccine caused any other injury; or that her current condition is a sequela of a vaccine-related injury.

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

END OF STIPULATlON I I I I I I I I

Respectfully submitted, PETITIONER:

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: Ot' TH'4: ATTORNEY GENERAL:

. -:dA.t~ &uR--<41,j.JA ~ J~ R HEATHER L. PEALMAN ~v--..._ Howie Law, P.C. O~puty Director 2608 Hibernia Street Torts Branch Dallas, TX 75204 Civil Division Tel: 214-622-6340 U.S. Department of Justice Fax: 214-622-6341 P.O. Box 146 Email: [email protected] Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey s. Dlgllally signed by J,ttrey S. Beach •S ~/7c:....--..........__ Date; 2024.06.04 Beach -S 10:51:25-04'00' for CDR GEORGE REEO GRIMES, MT>, MPH ~ KOVIC Director, Division of rnjury Trial Attorney Compensation Programs Torts Branch, Civil Division H~alth Systems Bureau U.S. Department of Justice Health.Resources and Services' P.O. Hox 146 • Administration Benjamin Franklin Station U.S. Depanrnent of Health Washington, DC 20044-0146 and Human Services Tel: (202) 616-2879 5600 Fishers Lane, 08W-25A Email: [email protected] Rockville, MD 20857

Dated: ;;, h ~ /3 L02l{_