Brown v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-912V

KAYLA BROWN, Chief Special Master Corcoran Petitioner, v. Filed: June 11, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner.

Mitchell Jones, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On February 11, 2021, Kayla Brown 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 September 29, 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 shoulder injury related to vaccine administration (“SIRVA”) as set forth in the Table. Petitioner further alleges that she experienced the residual effects of this condition for more than six months.

Respondent denies that Petitioner sustained a SIRVA, as defined in the Table; denies that the vaccine caused Petitioner’s alleged shoulder injury, or any other injury; and denies that his current condition is a sequela of a vaccine-related injury.

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 lump sum of $30,000.00 in the form of a check payable to Petitioner. This amount represents 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 ST ATES COURT OF :FEDERAL CLAll\-lS OFFICE OF SPECIAL MASTERS ) KAYLA BROWN, ) ) Petitioner, ) ) No. 21-912V (ECF) V. ) Chief Special Master Corcoran ) SECRETARY OFHEALTII ) AND HUMAN SERVICES, ) ) Respondent. _________________ ) ) STIPULATION 111e parties hereby stipulate to the following matters: 1. Kayla Brown ("petitioner") filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l 0 et seq. (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. § 100.3(a).

2. Petitioner received a flu vaccine on September 29, 2020 in her le.fl arm.

3. 1l1e vaccination was administered within the United States.

4. Petitioner alleges that she sustained a shoulder injury related to vaccine administration ("SIRVA") as set forth in the Table. Petitioner further alleges that she experienced the residual effects of this condition for more than six months.

5. Petitioner represents that there hac; 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 the flu vaccine caused petitioner's alleged injury. or any other injury. and further denies that petitioner's current disabilities arc scquclae 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 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-21(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lwnp sum of $30,000.00, in the fonn 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 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-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.

10. 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 liah le 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 lJ. 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- 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 unreimbursable expenses, the money provided pursuant to this Stipulation will he used solely for petitioner's benefit as contemplated by a strict constrnction of 42 C.S.C. §§ 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa-15(g) and (h).

13. In retum 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 alJ demands of whatever kind or nature) thai 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-10 et seq., on account of: or in any way growing out of, any and all known or unknown. suspected or w1suspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the flu vaccination administered on September 29, 2020, as alleged hy petitioner in a petition filed on February 11, 2021, in the United States Court of Federal Claims as petition No. 21-912V.

14. lf petitioner should die prior to entry ofjudgment, this agreement shaH be voidable upon proper notice to the Court on behaU' of either or both of the parties.

15. lf the special master fails to issue a decision in complete confom1ity with the tcnns of this Stipulation or if the Court of Federal Claims fails to enter judgment in confom1ity with a decision that is in complete confonnity with the terms 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 otheIWise 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 dearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the pa11ies ' respective positions as to liability 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 vaccine caused petitioner's alleged il\iury, or any other i'liury, or that her cun-ent disabilities are sequelae of her alleged vaccine-related injury.

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

END OF STIPULATION Respectfully submitted, PETITIONER: ............ Kayla Brown .......,,...... ....,,~] [ •••:::•-::::"''.:.,..=====================----••~c..., _...,_.,..,no,.."""' KAYLA BRO\VN

ATTORNEY OF RECORD AUTHORIZED REPRESENTATIVE FQ ETITIONER: OF THE ATTORNEY GENER.\L:

....A-v ~ V. Pe wd»v:----- HEATHER L. PEARLMAN Maglio Christopher & Toale, P.A. Deputy Director 1605 Main St. Suite 710 Torts Branch Sarasota, FL 34236 Civil Division Tel: (888) 952-5242 U.S. Department of Justice [email protected] P.O. Box 146 Benjamin f'ranklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HL'MAN SERVICES: jeffrey $. ?.t:~ ~red by Jeffrey Beach -S 0ate: 2024.os.2s ,s:16:56 -----· -01·00· for CDR GEORGE REED GRIMES, MD, MPH MITCHELL JONES Director, Division of Injury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Health Ber~amin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08W-25A Tel: (202) 305-1748 Rockville, MD 20857 mitchell.jones(_~usdoj .gov

Dated: