Hardy v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-0305V

NANCY HARDY, Chief Special Master Corcoran Petitioner, v. Filed: October 10, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.

Ryan Pohlman Miller, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On March 1, 2023, Nancy Hardy 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 November 24, 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 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 Table SIRVA injury; denies that any 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 10, 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 $10,000.00 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 ST ATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

NANCY HARDY, Petitioner, V. No. 23-305V (SPU) Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: I. Petitioner, Nancy Hardy, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (the '·Vaccine Program").

The petition seeks compensation for injuries allegedly related to petitioner's receipt of the influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a). ' .

2. Petitioner received the vaccine on or about November 24, 2020.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she suffered a left Shoulder Injury Related to Vaccine . . . .

Administration ("SIRVA") within the time period set forth in the Table. She further alleges that . . . she. experienced the residual effects o f this conditi9n for more than six months.

5. Petitioner represents that there has' been no prior award or· settlement o f a civil action for damages arising out o f the alleged vaccine injury.

- 1- 6. Respondent denies that petitioner suffered a Table SIRVA injury; denies that any 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 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 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 lump sum of $10,000.00, 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-l 5(a).

9. As soon as practicable after the entry of judgment 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)(l), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in any 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-l 5(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, and

-2- represent that they have identified to respondent all known sources o f payment for items or services for which the Program is not primarily liable under 42 U,S.C. § 300aa-l 5(g).

11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 o f this Stipulation will be made in accordance with 42 U.S.C. § 300aa-l 5(i), subject to the availability o f 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 the benefit o f petitioner as contemplated by a strict construction o f 42 U.S.C. § 300aa-l S(a) and (d), and subject to the conditions o f 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 o f petitioner's 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 o f action (including agreements, judgments, claims, damages, loss o f services, expenses and all demands o f whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the United States Court o f 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, vaccination as alleged by petitioRer in a petition for vacoine compensation filed-0n or about March 1, 2Q23, in the United States Court o f Federal Claims as petition No. 23-305V.

-3- 14. I f petitioner should die prior to entry o f judgment, this agreement shall be voidable upon proper notice to the Court on behalf o f either or both o f the parties.

15. I f the special master fails to issue a decision in complete conformity with the tenns o f this Stipulation or i f the United States Court o f Federal Claims fails to enter judgment in confo1mity 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 o f liabifity and damages claimed under the National Childhood Vaccine Injury Act o f 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part o f 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 o f the parties' respective positions as to liability and/or amount o f damages, and further, that a change in the nature o f the injury or condition or in the items o f 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 o f Health and Human Services that any vaccine caused petitioner's alleged injury or any other injury or petitioner's current condition, 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

-4- R fully subminfd.

P£TITIONER:

A'ITORNEVOFRECORDFOR AUTHORl7..ED REPRf.SENTATIVE PET OF THE ATTORNEY GENERAL: q;Ji..v.. e HEAntER L. PEARLMAN JO Ho e Law, P.C. Deputy Oiffflor 2608 Hibernia Sc. TOIU Branch. Civil Division Dallas. TX 7S204 u.s.0eparuncn,ofJUSlke (214) 622-6340 P.O. Box 146 JHowic@Howie w.net Benjamin Franklin Station Washingtc,n. DC 20()44.()146 AUTHORIZED REPRESENI'ATJVE A1TORNEY OF RECORD FOR OF TIIE SECRETARY OP HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffreys. =r"' ·Beach S · =:,••o.ou<WM foe· CAPT GEORGE REEDORIMES, MD. MPH k1 RYANP.MIU.ER 12.m.

Director, Division oflojwy Trial Attorney Compensation Programs Tons Branch Hcahh S)'SlemS Bw-cau -Civil Division Health Resowces and Savioes U.S. Depanmenl of Justice AdminimatJon P.O. Box 146 U.S.DepanmenlofHeahb • Benjamin FnmkUn S1ation and Human Services Washington. DC 20044-0146 5600 Fl1bcrs l..aM, 08W•2SA (202) 305-3027 Rodcvi,Ue, D 208S7 ryan.mll .gov ...... ' ' .

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