Blaine v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-686V

RALPH BLAINE, Chief Special Master Corcoran Petitioner, Filed: December 1, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On January 12, 2021, Ralph Blaine 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 a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza vaccine administered on November 4, 2019. Petition at 1; Stipulation, filed at November 30, 2023, ¶¶ 1, 2. Petitioner further alleges that the vaccine was administered within the United States, that he suffered the effects of his 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 his alleged injury. Petition at 1-3; Stipulation at ¶¶ 3-5. 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 his current condition is a sequela of a vaccine-related injury. Stipulation at ¶ 6.

Nevertheless, on November 30, 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 $32,500.00 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

Vinesign Document ID: B0F990F3-6E82-49B2-9AF4-78792EF82921

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

RALPH BLAINE.

Petitioner, v. No. 21-686V (ECF) Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: I . On January I 2, 202 I, petitioner filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to -34 (the "Program").

The petition seeks compensation for an injury allegedly related to petitioner's receipt of the influenza vaccine, which vaccine is contained in the Vaccine Injury Table, 42 C.F.R. § I 00.3(a) (the "Table").

2. Petitioner received an influenza vaccine on November 4, 2019.

3. The vaccine was administered within the United States.

4. Petitioner alleges that he suffered a left-sided SIRVA as a result of his vaccination.

Petitioner further alleges that he experienced the residual effects of this injury 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 injury.

The signed document can be validated at https://app.vinesign.comNerify 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 his current condition is a sequela of a vaccine-related injury.

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 eight of 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-2l(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: a. A lump sum of $32,500.00 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-2l(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 the 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-1 S(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 eight and any amounts awarded pursuant to paragraph nine 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 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-l 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h).

13. In return for the compensation described in paragraphs eight and nine, petitioner, in his individual capacity, and on behalf of his heirs, executors, administrators, successors, or assigns, does forever and 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 influenza vaccination administered on November 4, 2019, as alleged in a petition for vaccine compensation filed on or about January 12, 2021, in the United States Court of Federal Claims as petition No. 21-686V.

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 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.

16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of I 986, as amended, expect as otherwise noted in paragraph nine 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 construed as an admission by the United States or the Secretary of Health and Human Services that the influenza vaccine caused petitioner's alleged injury or any other injury or his current disabilities, or that petitioner suffered an injury 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

Respectfully submitted,

PETITIONER:

RALPH BLAINE

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE OF TIIE ATTORNEY GENERAL:

...-Me~\1:\?.uJ.A!L-- ~ ::a: a LEIG A. FINFE = Twining Road, Suite 208 Dresher, PA I 9025 HEATHER L. PEARLMAN Deputy Director Torts Branch Civil Division (215) 885-1655 U.S. Department of Justice [email protected] P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146

AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR THE SECRETARY OF HEALTH AND RESPONDENT: HUMAN SERVICES: Olgltally signed by Henry P• HenryP. Mcmillan -SS ~o~~v~ p by Mcmillan -S5 ~:.:;,~~ !~.:;, 2 1 P'-4 #Mk L _ ~ CDR GEORGE REED GRIMES, MD, MPH JOSEPH D. LEA VITT Director, Division of Injury Trial Attorney 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 Human Services Washington, D.C. 20044-0146 5600 Fishers Lane, 08W-25A (202) 616-0515 Rockville, MD 20857 [email protected]

Dated: n#o/V>Z..:3 Vlnesign - ~ - - - - - - - - --- ~ Verification Complete Tl ,c document h J~ Uet!n o lfiC1,1ll'1 ve1 1fietl ·~~ Document Status .,, Signed & verified Document Namt Stipulation • Blaine Sl!ftderName Muller Brazil Document Key BOf990f3-6E82-4982-9AF4-78792EF82921

Recipient 1 IP Address sI1natura Ralph Blaine 174.86.140.42 [email protected] (31 4) 222-31S4 Order 1

Document History Actlvtcy Dace•nme Recipient

I I /29/2023 03:22 UTC Ralph Blaine Signed by Ralph Blaine ([email protected]) 81odrcl111fn lllod< W211PJOIYSidWl!VllllxTdgFl<XU1Jg71.sx8RK•4Xl86s• Document Completed Oo<llffltflt Hash C2810216AS478E988332S2-804043C19SAFC0952E893709A3808An839 ◄iiiMtliD Ttm.,..mp 11/29/2023 03:22 UTC

11129/2023 03:16 UTC Ralph Blaine Viewed by Ralph Blalne([email protected]) Document Viemd

11/28/2023 21:34 UTC Ralph Blaine Sent out via email to Ralph Blaine ([email protected]) Document Sent

1I /28/2023 21:34 UTC Ralph Blaine Sent out via text to Ralph Blaine ((314) 222·3154) Document Sent

I 11/28/2023 21:34 UTC Created by Muller Brazil ([email protected]) Document Created