Blake v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2290V

DENNIS W. BLAKE, Chief Special Master Corcoran Petitioner, v. Filed: December 5, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jessica E. Choper, Britcher Leone and Sergio, LLC, Glen Rock, NJ, for Petitioner.

Jamica Marie Littles, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On December 14, 2021, Dennis W. Blake 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 11, 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 he sustained a left shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table. Petitioner further alleges that he experienced the residual effects of his alleged injuries 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 December 5, 2023, 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 $60,000.00 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

DENNIS W. BLAKE, Petitioner, . No. 21-2290V Chief Special Master Corcoran v. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: I. Dennis W. Blake ("petitioner") filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program 1 42 U.S.C. § J00aa-10 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of an influenza (..flu") vaccine, which is a vaccine that is contained in the Vaccine Injury Tabre (the "Table"), 42 C.F.R. § 100.J(a) 2. Petitioner received a flu vaccine on September 11, 2020. 1 3. The vaccine was administered within the United States.

4. Petitioner alleges that he sustained a left shoulder Injury refated to vaccine administration ("SIRVA") within lhe time period set forth in the Table. Petitioner further alleges that he suffered the residual effects of the alleged injury for more than six months.

, Petitioner also received a shingles vaccine on that same date. The shingles vaccine is not contained in the Vaccine Injury Table.

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Purchase a license to generate PDF flies Yfilhout this noUce- 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on his behalf as a result of the alleged injury.

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 vaccine-related injury.

7. Maintaining their above-stated positions, the parties nevenheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 or this Stipulation.

8. As soon as practicable after an entry ofjudgment 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}(1), the Secretary of Health and Human Services will issue the following vaccine compensation payment for all damages that would be available under 42 U.S.C. § 300aa-15(a): A lump sum ofSIO,D0O.OO in the form of a check payable to petitioner. This 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 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)(1), 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.

I 0. Petitioner and petitioner's attorney represent that compensation to be provided pursuant to this Stipulation ls 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

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Purchase a license to generate PDF files without this notice. reasonably be expected to b·e 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 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 attorney's fees and litigation costs, and past unreimbursable e)(penses, the money provided pursuant to this Stipulation ~ilJ be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-1 S(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-1 S(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 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 whatever 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 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 vaccinations administered on September 11, 2020, as alleged in a petition for vaccine compensation filed on or about December 14, 2021, in the United States Court of Fede_ral Claims as petition No. 21-2290V.

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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. lf the special master falls 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 ln 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.

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 nawre 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 his current disabitities, or that petitioner suffered an i!1jury contained in the Vaccine hyur:y 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

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Respectfully submitted, PETIT[ONER: Ld,,:/{la_ DENNIS W. BLAKE

ATTORNEY OF RECORD FOR AU1llORIZED REPRESENrATIVE PEfflIONER: OF 1lffi ATTORNEY GENERAL:

c£.v~?.~ JESSICA E. CHOPER ~c&u ,l\\l fLJM;t ~ HEATHER L. PEARLMAN -v '\ Attorney for Petitioner Deputy Director Britcher. Leone & SCfXio, LLC Torts Branch, CiviJ Division Rock Road U.S. Department of Justice Glen Rock. NJ 0745:Z P.O. Box 1% (201) 444-1644 Benjamin Franklin Station [email protected] Washington, DC 20044-0146

AUTiiORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF 11iE SECRETARY OF HEALTH RESPONDENT.

AND HUMAN SERVICES: °"Dtall'•llnedllrl4elliyP.

Henry P. Moi6n-ss by Mcmillan -SS ::,.:iou.,,;a ""1:1• CDR GEORGE REED GRJMES, MD, MPH ICA M. LITTLES Director, Division of Injury Tri Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justi~ Health Resources and Services Administration P.O. Box 1% U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-01.:16 5600 Fishers Lane, 08W-25A (202) 305-4014 Rockville, MD 20857 [email protected]

I~}5/ /J-3 Dated: - '---41~ ,"-------- - -