Nemeh v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-584V

MARYA NEMEH, Chief Special Master Corcoran Petitioner, Filed: October 31, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

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

Madylan Yarc, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1 On April 26, 2023, Marya Nemeh 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 she suffered a Table injury – a shoulder injury related to vaccine administration (“SIRVA”), as a result of her July 7, 2020 meningococcal conjugate, meningococcal B, and hepatitis A vaccinations. Stipulation, filed at October 31, 2024, ¶¶ 1-2, 4; see generally Petition. Petitioner further alleges that she received the vaccines in the United States, that she suffered the residual effects of her injury for more than six months, and that there has been no prior award or settlement of a civil action on her behalf as a result of her injury. Stipulation at ¶¶ 3-5; see Petition at ¶¶ 2, 6, 27.

“Respondent denies that [P]etitioner sustained a SIRVA Table injury; denies that the vaccine[s] caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on October 31, 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) A lump sum of $40,000.00 in the form of a check payable to Petitioner; and b) A lump sum of $1,947.96, representing reimbursement for a Medicaid lien for services rendered to petitioner by the State of New Jersey, in the form of a check payable jointly to Petitioner and Health Management Systems, Inc. P.O. Box 416522 Boston, MA 02241-6522 Event Number 94813818 Petitioner agrees to endorse this check to "Treasurer, State of New Jersey." 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 OFFICE OF SPECIAL MASTERS

MARYA NEMEH, Petitioner, No. 23-S84V Chief Special Master Corcoran V. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: I. Marya Nemeh ("petitioner"), 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 ofMeningococcaJ conjugate (Menactra), Meningococcal 8 (Bexsero), and Hepatitis A (Vaqta) vaccinations, which are contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.J(a).

2. Petitioner received Meningococcal conjugate (Menactra), Meningococcal B (Bexsero), and Hepatitis A (Vaqta) vaccinations on July 7, 2020.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she sustained a 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 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 on her behalf as a result of her 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 her 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 payments: a) A lump sum of $40,00.00 in the form of a check payable to petitioner; and b) A lump sum of $1,947.96, 1 representing reimbursement for a Medicaid lien for services rendered to petitioner by the State of New Jersey, in the form of a check payable jointly to petitioner and Health Management Systems, Inc. P.O. Box 416522 Boston, MA 02241-6522 Event Number 94813818 Petitioner agrees to endorse this check to "Treasurer, State of New Jersey."

This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of New Jersey may have against any individual as a result of any Medicaid payments the New Jersey State Program has made to or on behalf of Marya Nemeh as a result of her alleged vaccine-related injury following the vaccines administered on July 7, 2020, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa- l 5(g), (h).

These amounts represent 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-2 l(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 proceeding upon this petition.

l 0. Petitioner and her 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-15(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. Payments 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-l 5(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 attorneys' 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-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa- l 5(g) and {h).

13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her 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, Joss of services, expenses and all demands of whatever kind or nature) that have been brought, couJd 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- l O 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 July 7, 2020, as alleged in a petition for vaccine compensation filed on or about April 26, 2023, in the United States Court of Federal Claims as petition No. 23-584V 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 the Court of Federal Claims fails to enter judgment in confonnity 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 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 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 Meningococcal conjugate (Menactra), Meningococcal B (Bexsero), and Hepatitis A (Vaqta) vaccinations caused petitioner's alleged injury or any other injury or her 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, adm inistrators, successors, and/or assigns.

END OF ST[PULATION

Respectfully submitted, PETITIONER:

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

, # ~ -A E. CHOPER, ESQ.

Britcher Leone & Sergio, LLC _.J.,{J~ \iJ)t'' ,.,L..,V) HEATHER L. PEARLMAN Deputy Director - Harristown Road Torts Branch, Civil Division Glen Rock, N.J. 07452 U.S. Department of Justice (20 I) 4444-1644 P.O. Box 146 jessica blsattomeys.com Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRET ARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey S. ~ga,.,.,.,11,,. J.ffl.y S. - ~ Beach -S ber.1D1.,cuo u,.,.. ...._ for CAPT GEORGE REED GRIMES, MD, MPH Director, Division of Injury Compensation Programs ~i!fir - Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justice Health Resources and Services P.O. Box 146 Administration Benjamin Franklin Station U.S. DepartmentofHealth Washington, DC 20044-0146 and Human Services (202) 742-6376 5600 Fishers Lane, 08W-25A madylan.l. yarc@usdo j.gov Rockville, MD 20857