Kerr v. Secretary of Health and Human Services

$033&$5&% In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1688V

FRANCES KERR, Chief Special Master Corcoran Petitioner, Filed: May 15, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.

Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1 On November 16, 2022, Frances Kerr 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 (“flu”) vaccine administered on September 2, 2020. Petition at 1; Stipulation, filed at May 9, 2024, ¶¶ 1, 2. Petitioner further alleges that the vaccine was administered within the United States, that she experienced the residual effects of her injury for more than six months, and that there has been no prior award or settlement of a civil action for damages as a result of her condition. Petition at 1, 6; Stipulation at ¶¶ 3-5. Respondent denies that Petitioner sustained a Table SIRVA within the timeframe set forth in the Table; and denies that the flu immunization caused or significantly aggravated Petitioner’s alleged shoulder injury and/or any other injury.

Stipulation at ¶ 6.

Nevertheless, on May 9, 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 $22,500.00 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

I~ THE rNITED STATES corRT OF FEDER.\L CLAI\IS OFFICE OF SPECIAL MASTERS

FRANCES KERR, Petitioner. \". No. 22-1688\ Chief Special ~faster Brian H. Corcornn SECRETARY OF HEALTH AND ECF HUMAN SERVICES.

Respondent.

STIPrLA TIO~ The parties hereby stipulate to the following matters: l. Frnnces Kerr ("petitioner'") filed a petition for ,·accine compensation under the National Vaccine Injury Compensation Program. 42 l .S .C. § 300aa-10 to 34 (the ··Vaccine Progrnm''). The petition seeks compensation for injuries allegedly related to petitioner's receipt of an influenza ("flu'') rnccine. which vaccine is contained in the \'accine Injury Table (the .. Table''), 42 C.F.R. § l00J(a).

2. Petitioner received a t1u Yaccine on or about September 2. 2020. in her right upper extremity.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she sustained a right-sided shoulder inju1y related to Yaccine ndministrntion (''SIRVA") within the time period set forth in the Table and that she experienced the residual effects of this injury for more than six months.

5. Petitioner represents that there has been no prior mYard or settlement of a ciYil action for damages as a result of her condition.

6. Respondent denies that petitioner sustained a Table SIRVA within the timeframe set forth in the Table: and denies that the flu immunization caused or significantly aggraYated petitioner" s alleged shoulder injmy ai1d 1or any other injury.

7. .Maintaining their aboYe-stated positions. the parties neYertheless 110\Y agree that the issues between them shall be settled and that a decision should be entered mnmling the compensation described in paragraph 8 of this Stipulation.

8. As soon as practicable after an ent1y of judgment reflecting a decision consistent with the terms of this Stipulation. and after petitioner has filed an election to receiYe compensation pursuant to 42 U.S.C. § 300aa-2 l(a)( l ). the Secretaiy of Health and Human Sen·ices ,..,.ill issue the follo\\·ing \'accine compensation payment: A lump sum of $22,500.00 in the form of a check payable to petitioner. This amount represents all compensation for damages that would be aYailable under 42 lT.S.C. § 300aa-15(a) for injuries allegedly related to petitioner's receipt of the flu Yaccine.

9. As soon as practicable after the entiy of judgment 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-2 l(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 they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g). including State compensation programs. insurance policies.

Federal or State health benefits programs (other than Title XIX of the Social Security Act H2 l .S.C. § 1396 et seq.)). or entities that pro\'ide health ser\'ices on a pre-paid basis.

11. Payment made pursuant to paragraph S and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with-42 l .S.C. § 300aa-15(i). subject to the availability of sufficient statutory fund s.

12. The parties and their attorneys further agree and stipulate that. except for any award for attorneys· fee s and litigation costs. and past unreimbursable expenses. the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict constrnction of-42 U.S.C. § 300aa-15(a) and (d). and subject to the conditions of-42 U.S.C. § 300aa-15(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 and or assigns. does forever irrevocably and unconditionally release. acquit and discharge the United States and the Secretaiy 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 ,vhatever 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. § 300aa-10 et seq .. on account of or in any way gro\\·ing 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 2. 2020. as alleged by petitioner in a petition for vaccine compensation filed on or about November 16. 2022. in the United States Court of Federal Claims as petition No. 22- 1688\'.

1-4. 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 Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity \Yith 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\ accine Injury Act of 1986. as amended. except as otherwise noted in paragraph 9 aboYe. 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 parties· respective positions as to liability and ior amount of damages. and further. that a change in the nature of the injmy or condition or in the items of compensation sought. is not grounds to modify or reYise this agreement.

17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Hmn::rn Services that the flu \·accine caused petitioner's alleged shoulder injury. arn.Vor any other injmy.

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:

FRANCES KERR

ATTOR:\'EY OF RECORD FOR ArTHORIZED REPRESE:\'TATIYE PETITIOIXER: OF THE ATTOR:\'EY GEIXERAL:

'iitfH~ g ~ L ~ Deputy Director South Broadway. 4th Floor Torts Branch \\"hite Plains. New York 10601 CiYil Division 1914) 729-1 110 U.S. Depai1ment of Justice [email protected] P.O. Box 146 Benjamin Frnuklin Station \V ashington. D C .20044-0146

Al"THORIZED REPRESENTATIVE ATTOR.~EYOFRECORDFOR OF THE SECRETARY OF HEALTH RESPOIXDE~T: A:\'D Hrl\IA~ SERVICES: Je ffrey s • D1gllally signed by Jeffrey S. Beach •S Beach -.S Date: 2024.05.02 09:26:36 -0400' for CDR GEORGE REED GRIMES. tvID, .MPH Director. Di,·ision of Injmy Senior Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Ci,·il Division Health Resources and Ser,;ices U.S . Department of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Frnnkliu Station and Human Sen·ices \Vashington. DC 20044-0146 5600 Fishers Lnne. 08\V-.25A (202) 616-9847 Rochille. MD 2085 7 ryan. pyles@usdo j.gov

Dared ~ 4202f