Stabler v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-463V

NICOLAS STABLER, Chief Special Master Corcoran Petitioner, Filed: January 9, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Lawrence R. Cohan, Saltz Mongeluzzi & Bendesky, Philadelphia, PA, for Petitioner.

Julia Marter Collison, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1 On January 11, 2021, Nicolas Stabler 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 he suffered radial nerve and axillary nerve damage, a Table injury, resulting from an influenza (“flu”) vaccine he received on September 26, 2020. Pet. at 1, ECF No. 1. Petitioner further alleges that the vaccine was administered in the United States, he experienced the residual effects of his 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 his condition. Id. at 2. Respondent denies “that [P]etitioner sustained a shoulder injury as defined in the Vaccine Injury Table; denies that the vaccine caused [P]etitioner’s alleged nerve injury, or any other injury; and denies that his current condition is a sequelae of a vaccine-related injury.” Stipulation at 1, ECF No. 49.

Nevertheless, on January 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 $52,500.00 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 STATE.5 COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

NICOLAS STABLER, Petitioner, No. 21-463V v. Chief Special Master Corcoran SPU SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate 10 the following matters: I. Nicolas Stabler ("petitioner") filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 co 34 (the "Vaccine Program"). The petition seeks compensation for an injury allegedly related to petitioner's receipt of an influenza ("flu'') vaccine. which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § I00.3(a).

2. On September 26, 2020, petitioner received a flu vaccine.

3. The vaccine was administere<l in the United States.

4. Petitioner alleges that he sustained radial nerve and axillary nerve damage. He further alleges that he 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 his alleged condition.

6. Respondent denies that petitioner sustained a shoulder injury as defined in the Vaccine lnjury Table; denies that the vaccine caused petitioner's alleged nerve injury, or any other injury; and denies that his current condition is a sequelae of a vaccine-related injury.

I ors 7. Maintaining their above-staled positions, lhe parties nevertheless now agree thnt 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 consistcnt with the tem1s of this Stipulation, and after pelitioner has filed an election to receive compensation pwsuant to 42 U.S.C. § 300aa-2 I(a)( I), the Secretary of HeaJth and Human Services will issue the following vaccine compensation payment: a lump sum of $52,500.00 in the fonn of a check payable to petitioner. This amount represcnr compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

9. As soon as praclicable after the entry ofjudgment on entitlement in this case, and after petitioner has filed both a proper and timely election lo receive compensation pursuant 10 42 U.S.C. § 300aa-2 I(a)(I) 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.

I0. Petitioner and his 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- I5(g), including 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 entities that provide health services on a pre-paid basis.

11. Payment made pursuant to paragraph 8 of this Stipulation, and any amount awarded pursuant to paragraph 9, will be made in accordance with 42 U.S.C. § 300aa-l5(i), subject to the availability of sufficient statutory funds.

12. The parties and their auomeys further agree and stipulate that, except for any award for attorneys' fees and litigation costs, and past unreimbursed expenses, the money of5 provided pursuant to lltis Stipulntion will be used solely for the benefit of petitioner as conlemplatcd by a strict construction of 42 U.S.C. § 300na•I 5(11) and (d), ond subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h).

13. In return for the paymenl described in paragraph 8, and any amount awarded pursuant to paragraph 9, petitioner, in his individual capacity. and on behalf of his 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 all demands of whalever 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-J0 el seq .. on account of. or in any way growing out of, any and all known or unknown, suspccled or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from the vaccine administered on September 26, 2020, as alleged in a Petition filed on January 11, 2021, in the United States Court of Federal Claims as petilion No. 2 l-463V.

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 confonnity with the terms of this Stipulation or if lhe United States Court of Federal Claims fails to enter judgment in confonnity with a decision that is in complete confonnity with the tenns of this Stipulation. then the parties' senlement and this Stipulation shall be voidable at the sole discretion of either party.

16. This Stipulation expresses a full and complete negotiated senlement 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 ofS parties hereto to make any payment or 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 reOect 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 nerve injury, or any olher injury or his current condition.

I8. All rights and obligations of petitioner shall apply equally to petitioner's heirs, executors, administrators.. successors, and/or assigns.

END OF STIPULATION

4ofS Respectfully submitted,

PETITIONER:

~ ~ NICOLAS STABLER

ATTORNEY OF REC AlJTHORJZED REPRESENTATIVE PETmONER: OF THE ATTORNEY GENERAL:

·...J{.t.~ HEATHER L. PEARLMAN f&BENOESKY Deputy Director , S2Dd Floor Torts Branch 1650 Market Street Civil Division Philadelphia, PA 19103 U.S. Department of Justice (21 S) 575-3887 P.O. Box 146 [email protected] Benjamin Franklin Station Washington, DC 20044-0146

AUTHORJZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Henry P. =~byHWf'• by Mcmillan -S5 ~:rontui ' ~ /If/ 6 (/1n1 CDR GEORGE REED GRIMES, MD, MPH ,JULIA M. COLLISON Director, Division oflnjury Assistant Director 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 Benjamin Franklin Station and Hwnan Services Washington, DC 20044-0146 5600 Fishers Lane, 08W•2SA (202) 305.0102 Rockville, MD 20857 [email protected]

Dated: _ _l L~ ~ i _ , ors