Law v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-0696V

JONATHAN LAW, Chief Special Master Corcoran Petitioner, v. Filed: May 6, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Bruce William Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for Petitioner.

Naseem Kourosh, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On June 21, 2022, Jonathan Law 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 17, 2021, 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 he sustained a shoulder injury related to vaccine administration (“SIRVA”) as set forth in the Table, or, in the alternative, that Petitioner’s alleged shoulder injury was caused by the vaccine. Petitioner further alleges that Petitioner suffered the residual effects of the alleged injury for more than six months.

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

Nevertheless, on May 6, 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 $55,000.00 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.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

JONA THAN LAW, Petitioner, No. 22-696V (ECF) V. Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: I. Jonathan Law, petitioner, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (the "Vaccine Program").

The petition seeks compensation for injuries allegedly related to petitioner's receipt of the influenza vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), C.F.R. § I00.3(a).

2. Petitioner received an influenza vaccine on September 17, 2021 in the left arm . 1 3. The vaccination was administered within the United States.

4. Petitione r a lleges that petitioner susta in ed a shoulder inju ry related to vacc ine admin istration ("SIRVA") as set fo1i h in the Tabl e, or, in the alternative, that petitioner's alleged

On October 27, 2021, petitioner received a COVID-19 vaccine. Vaccines against COVID- 19 are not contained in the Vaccine Injury Table. See 42 U.S.C. § 300aa-14 and 42 C.F.R. § 100.3(a). Pursuant to the declaration issued by the Secretary of Health and Human Services under the Public Readiness and Emergency Preparedness Act (42 U.S.C. §§ 247d-6d, 247d-6e), claims for alleged injuries from COVID-19 countermeasures, including vaccines, may be compensable under the Countermeasures Injury Compensation Program ("CICP"). See 85 Fed. Reg. 15198, 15202 (March 17, 2020}. shoulder injury was caused by the vaccine. Petitioner further alleges that petitioner experienced the residual effects of th is co nd ition fo r mo re than six mo nths.

5. Petitioner represents that there has been no prior award or settlement of a civi I action for damages on petitioner' s behalf as a result of petitioner's condition.

6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused petitioner' s alleged shoulder injury, or any other injury; and denies that petitioner' s current condition is a sequela of a vacc ine-related inju•ry.

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 recei ve compensation pursuant to 42 U.S.C. § 300aa-21 (a)(I), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $55,000.00 in the form of a check payable to petitioner. T his 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 of judgment on entitlement in thi s case, and after petitioner has filed both a proper and timely election to receive compensation pu rsuant to 42 U.S.C. § 300aa-2 l (a)( I), and an application, the pa1ties 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 petitioner's 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-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 U.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 be used solely for petitioner's benefit as contemplated by a strict construction of 42 U.S.C. §§ 300aa-l 5(a) and (d), and subject to the condition s of 42 U.S.C. §§ 300aa- l 5(g) and (h).

13. In return for the payments described in paragraphs 8 and 9, petitioner, in petitioner's individual capacity, and on behalf of petitioner's heirs, executors, administrators, successors or assigns, (a) 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 (includ ing agreements, judgments, claims, damages, loss of services, expenses, and all demands of whatever kind or nature) that have been brought, cou Id have been brought, or hereafter could be timely brought in the Court of Federal Claims, under the Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., (i) 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 that could be alleged to have resulted from , the vaccinations adm inistered on September 17, 2021 , and on October 27, 2021 , or (ii) that petitioner has had, now has, or hereafter may have with respect to the injury that gave rise to the petition for vaccine compensation filed on or about June 21, 2022, in the United States Court of Federal Claims as petition No. 22-696V; and (b) waives any and all rights to any compensation that may be available under the CICP, 42 U.S.C. § 247d-6e (or an action under 42 U.S.C. § 247d-6d(d)), for a claim alleging that a covered countermeasure, including the COVID- 19 vaccination administered on October 27, 2021, on its own or in combination with the flu vaccination administered on September 17, 2021, caused or seriously aggravated the injuries that are the subject of the petition for vaccine compensation filed on or about June 21 , 2022, in the United States Court of Federal Claims as petition No. 22-696V, including a shoulder injury, for which petitioner will receive compensation pursuant to this Stipulation. If petitioner has such a claim currently pending with the CICP, petitioner hereby withdraws such claim for compensation in the CICP. 2 lfno claim for compensation has been filed in the CICP as of the date this Stipulat ion is filed , petitioner waives the right to file a claim as described in this paragraph for compensation in the CICP.

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 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 parties' settlement and this Stipulation shall be voidable at the sole discretion of either party.

Once incorporated into a decision by the special master, petitioner agrees that respondent will send this Stipulation to the CICP as evidence of petitioner's withdrawal of petitioner' s CICP claim and waiver of compensation under the CICP.

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 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 co nstrued as an adm iss ion by the United States or the Secretary of Health and Human Service that the influenza vaccine caused petitioner's alleged injury or any other injury or petitioner's current d isabil ities, or that petitioner suffered an inju ry contained in the Vaccine Injury Table.

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

END OF STIPULATION

Respe ctfully submi tted, PETITIONER:

~~ ATTORNEY OF RECORD AUTHORIZED REPRESENTATIVE FOR PETITIONER: OF THE ATTORNEY GENERAL: /..S/ H~ d- fe tu l~ /Juu v4/ BRUC E W. SLAN E .l✓ JI~ ~ ts I Cl u~ S Ix.Pa cat c_ HEA Tf-TER L. PEAR LMAN The Law Office of Bruce W. Slane, P.C. Deput y Direc tor East Post Road, Suite 205 Torts Branc h White Plains, NY 10601 Civil Divisi on Telep hone: (914) 269 -2010 .· U.S. Depar tment of Justic e Ema il : bruce@ slane-lavv.com P.O . Box 146 Benja min Frank lin Statio n Washi ngton , DC 20044 -0 [46

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEAL TH RESPONDENT: AND HUMAN SERVICES: Jeffrey S. \ rng;tallys;gnedbyJeff,eyS.Beach•S Bea Ch -S 9ate;2024.04 .12 14:26:56-04' 00' for CDR GEOR GE REED GR1MES, MD, MPH Direct or, Divisi on oflnju ry Trial Attorn ey Comp ensati on Progra ms Torts Branc h Health System s Burea u Civil Divisi on Health Resou rces and Servic es U.S. Depar tment of Justic e Admin istrati on P.O. Box 146 U.S. Depar tment of Health Benja min Frank lin Statio n and Huma n Servic es Washi ngton , DC 20044 -0146 5600 F ishers Lane, 08W -25A Telep hone: (202) 305 - 1.159 Rockv ille, MD 20857 Email: Nasee m.Kou rosh@ usdoj. gov