Martin v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1936V

LORRAINE MARTIN, Chief Special Master Corcoran Petitioner, Filed: June 7, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Rhonda Lorenz-Pignato, Shannon Law Group, PC, Woodridge, IL, for Petitioner.

Michael Joseph Lang, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1 On December 30, 2022, Lorraine Martin 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”) following an influenza vaccination she received on September 21, 2020. Petition at 1; Stipulation, filed at June 6, 2024, ¶¶ 2, 4. Petitioner further alleges that she has suffered the residual effects of her SIRVA for longer than six months. Petition at ¶ 41; Stipulation at ¶ 4. “Respondent denies that Petitioner sustained a SIRVA Table injury; denies that the flu vaccine caused Petitioner’s alleged shoulder injury; and further denies that the flu vaccine caused Petitioner to suffer from any injury or her current condition.” Stipulation at ¶ 6.

Nevertheless, on June 6, 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 $17,500.00 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. 4 IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

The filed Stipulation contained an electronic signature verification page which has been removed from the attachment to protect the confidential information of the signers.

IN THE UNITED STATES COURT OF FEDERAL CLAl~S OFFICE OF SPECIAL MASTERS

LORRAINE MARTIN, No. 22-1936 V Petitioner, Chief Special Master Corcoran ECF V.

SECRETARY OF HEAL TH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: 1. Petitioner, Lorraine Martin, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-I0 to -34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of the influenza ("flu") vaccine, which is contained in the Vaccine Injury Table (the "Table"). 42 C.F.R. § I 00.3(a).

2. Petitioner received the flu vaccine in her right arm on or about September 21. 2020.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she sustained a shoulder injury related to vaccine administration ("SIRVA") within the time period 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 has been no prior award or settlement of a civil action for damages as a result of her condition.

E NV68964898-4200-FFAF-41 05-EBFC 05/3012024 00:23 AM UTC 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu vaccine caused petitioner's alleged shoulder injury; and further denies that the flu vaccine caused petitioner to suffer from any other injury or her current condition.

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 Stipulation1 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 Human Services will issue the following vaccine compensation payment: A lump sum of$17,S00.00 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- I 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-2l(a){l ), and an application, the parties will submit to further proceedings before the special master to award reasonable attomeys' fees and costs incuned in proceeding upon this petition.

I0. Petitioner and her attomey 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.

ENV68964898-4200-FFAF-4105-EBFC 05/30/2024 00:23 AM UTC 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- I 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- I5(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 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 caL1scs of action (including agreements,judgments, claims, damages, loss of services, expenses and all demands ofwhalever 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~IO 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 flu vaccination administered on or about September 21, 2020, as alleged in a petition for vaccine compensation filed on or about December 30, 2022, in the United States Court of Federal Claims as petition No. 22-1936V.

14. Ifpetitioner 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.

ENV689 64898-4200-FFAF-4105 -EBFC 05130/2024 00:23 AM UTC 15. If the special master fails to issue a decision in complete conformity with the tcnns of th is 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 this Stipulation, then the patties' sculement 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 lnju1y Act of 1986, as amended, except as othe1wise 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 patties 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 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 injury or any other injury or her current disability, or that petitioner suffered an injury contained in the Vaccine Injury Table.

l 8. All rights and obligations of petitioner hereunder shall apply equally to petitioner'i:; heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

ENV68964898-4200-FFAF-4105-EBFC 05/30/2024 00:23 AM UTC Respectfully submitted, PETITIONER:

LORRAINE MARTIN

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

~~¥.~<?,,, ,4 ~ HEATHER L. PEARLMAN Shannon Law Group, P.C. Deputy Director 550 Hobson Road Torts Branch Woodridge, IL 605 I 7 Civil Division Tel: (312) 578-950 I U.S. Department of Justice rlorenzp ignato@shannon la wgroup .com Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey S. Digita lly signed by Jeffrey S. Beach -S Beach -S : :~~~024.os.21 13:46:Ss tor CDR GEORGE REED GRIMES, MD, MPH Director, Di vision of lnj ury Trial Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justice Health Resources and Seivices P.O. Box 146 Administration Benjamin Franklin Station U.S. Department of Health Washington, DC 20044-0146 and Human Services Tel: (202) 880-0239 5600 Fishers Lane, 08W-25A Michael.Lang3 l usdoj.gov Rockville, MD 20857

Dated: ("/ . (/ f J. l../

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