Cromartie v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1145V

KOTANA CROMARTIE, Chief Special Master Corcoran Petitioner, v. Filed: October 2, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Bridget Corridon, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On March 31, 2021, Kotana Cromartie 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 January 21, 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 she sustained a left shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table following administration of the vaccine. Petitioner further alleges that she experienced the residual effects of this condition for more than six months.

Respondent denies that Petitioner sustained a SIRVA; 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 October 2, 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 $40,000.00 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS oma OF SPECIAL MASTERS KOTANA CROMARTIE, ) ) Petition«-. ) v. ) No. 21-1145V ) Chief Special Master Corcoran SECRETARY OF HEAL1H AND HUMAN j ECF SERVICES. ) _____________ Respondent ) STIPULATION The parties hereby stipulate to the following matters: 1. Kotana Cromartie, petitionec, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program. 42 U.S.C. § J00aa-10 to-34 (the "Vaccine Program;. The petition seeks compensation for injuries allegedly related to petitioner's receipt of the influenza ("flu") Va¢cine, which vaccine is contained in the Vaccine 11\jury Table (1he ''Table"), 42 C.F.R. § 100.3(a).

2. Petitioner reuived the flu vaccination in her left arm on January 21, 2021.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she suffered a left Shoulder Injury Related to Vaccine Administration ("SIRVA") as a result of,receiving the flu vaccine witlrin the Table time frame. and that she experienced teSidual effects of1bis injucy for roor:e than six months.

S. Petitioner represents that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition.

6. Respondent denies that petitioner sustained a SIRVA, as defined in the Table; denies that the vaccine caused petitioner's alleged shoulder injuzy, or any other iajury; and denies that her cutTCnt condition is a sequelac of a vaccine-related iajury.

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 1hc compensation described in paragraph 8 of this Stipulation.

8. M soon as practicable after an entry ofjudgme.nt 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){l ). the Secretary ofHealth and Human Services will issue the following compensation payme.ttt: A lump sum ofSC0,000.00, in the form of a check payable to petitioner.

This amount represems compensation fur all damages that would be available under 42 U.S.C. § 3008a-1S(a).

9. As soon as practicable after the entry ofjudgment on entitlement in this case, and atkr petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(a)(l), and an application, the parti~ will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in procce<iing upon this petition.

l 0. Petitioner and her attorney represent that compensation to be provided pw:suaot to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-l S(g), to the extent that payment has been mado or can reasonably be oxpeded to bo made under any State compensation programs, insurance policies. Federal or

State health benefits programs (other than Title XIX ofthe Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis.

11. Payment ma.de pursuant to paragraph 8 ofthis Stipulatio~ and any amounts awarded pursuant to paragraph 9 of this Stipulation, wiJl be made in accordance with 42 U.S.C. § 300aa• 1S(i). subjec:t to the availability of sufficient statutory funds.

12. The parties and their attomeys further agtee and stipulate that, ex:cept for any award for attorneys, fees and litigation c0.9ts, and past uruchnbursable 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-l5(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa-l S(g) and (h).

13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity and on behalf ofher heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditiooally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions, causes of action (including agreemcots,judgmcnts, claims, damages, loss of services. expenses and all demao.ds of whatever kind or nature) thai have been brought, could have been brought, or could be timely brought in the Court ofFederal Claims, under the National Vaccine lajwy Compensation Program, 42 U.S.C. § 300aa 10 et seq., on account of, or .in any way growing out of, an.y and all known or unknown. suspected or ~ t : e d personal iajurles to or death of petitioner resulting from, or alleged to have resulted from, the flu vaccine, administered on or about January 21, 2021, as alleged by petitioner in a petition for vaccine compensation filed on March 31, 2021, in the United S~s Court of Federal Clahns as petition No. 21-114SV.

14. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable upon proper notke to the Court on behalf of either or bo1h of the parties.

15. If the special master fails to issue a decision in complete conformity with the t.eims of this Stipulation or if the Court ofFederal Claims fails to enter judgment in collfomtlty with a decision that is in complete confonnity with the terms ofthi$ 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. The~ 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 cleady agreed to. The parties further agree and understand that the award described in this stipulation may reflect a C-Ompro:.ro.ise ofthe parties' ,:espective positioos 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 SecteUuy ofHealth and Human Services that the flu vaccine caused petitioner to suffer a shoulder injury or her cu.n-ent disabilities, or any other injury or condition, or that petitioner sustained an iajury contained in the Vaccine lnjucy Table.

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

END OF STIPULATION

Respectfully submitted,

AlTORNEYOFRECORDFOR AUTHORIZED REPRSENTATIVE PETITIONER: Oli' TOE Al'TORNEY GENERAL:

a~ Law Offices of Leah V. Duran~ PLLC 1717 K Street NW, Suite 900 Washington, DC 20006 THER L. PEARL Deputy Director Torts Branch Civil Division (202) 776~9200 U.S. Department ofJustice Evmail:[email protected] P.O.Box 146 Benjamin Fraaklin Station Washington. DC 20044•0146

AUTHORIZED REPUESENTATlV:E ATTORNEY OF RECORD FOR OF THE SltCRETARY OF BEALm UESPONDENT: AND BUMAN SERVICES: Jeffrey S• ,f.,Jeffrey Dlgttally signed by S. Beach •S -S 1::.,.oate~2024.09.18 Beach . ,,. 11:49:sa -04'oo' for CAPT GEORGE REED OR.IMES, MD, MPH ~BRIDGii 1,t v'~ A. CORRIDON Director, Division of Injury Trial Attorney Compemation Programs Torts Branch Health Syscems Bureau Cl-vil Division Health Resources and Services U.S. Department of Justice Adminis1ration P.O.Boxl46 U.S. Department ofHealth Benjamin Franklin Station and Human Servkes Washington, DC 20044-0146 5600 Fishers Lane, 08W-2SA Tel: (202) 305-4117 Rockville, MD 208S7 E-mail: [email protected] s