Summers v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-0020V

DEBORAH SUMMERS, Chief Special Master Corcoran Petitioner, Filed: April 24, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Lawrence R. Cohan, Saltz, Mongeluzzi & Bendesky, Philadelphia, PA, for Petitioner.

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

DECISION ON JOINT STIPULATION1 On January 9, 2023, Deborah Summers 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 shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza vaccine received on or about September 22, 2020. Petition at 1; Stipulation, filed April 24, 2025, at ¶¶ 2-4. Petitioner further alleges that the vaccine was administered in the United States, she suffered residual effects of her injury for more than six months, and there has been no prior award or settlement of a civil action for damages arising out of her injury. Petition at ¶¶ 2, 17, 20; Stipulation at ¶¶ 3-5. “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.” Stipulation at ¶ 6.

Nevertheless, on April 24, 2025, 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 $85,000.00, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement 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 OFFCCE OF SPECIAL MASTERS

DRBOR AII SUMMERS, Petitioncr, V. No. 23-20V (SPU) Chief Special Master Corcoran SECRETARY OF HEALTH AND F.CF HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: I. Petitioner, Deborah Summers, (i[ed a petition for vaccine compensation under the Nationnl Vaccine Inj ury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries nllcgedly related to petitioner's receipt of the influcnw ("flu") vaccine, which vaccine is contained in the V1:1ccine Injury THblc (the "Table"), 42 C.F.R. § 100.3 (a).

2. Petitioner received the vaccine on or about September 22, 2020.

3. The vaccine was administered within the United States.

4, Petitioner alleges that she suffered a right Shoulder Injmy Related to Vaccine Administration ("S IRVA") within the time period set forth in the Table. She further alleges that she experienced the residual effects of this condition fo r rnore than six months.

5. Petitioner represents that there has been no prior award or settlement of a civil action for damages arising out of the all eged vaccine injury.

-l- 6. Respondent denies that pct itioner suffered a Table SIRV /\. injury; denies that any vaccine caused petitioner's alleged shoulder injury, or any other injmy; and denies that petitioner's current cond ition 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 paragr11ph 8 of this Stipulation.

8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipu lation, and after petitioner has Ji led an election lo receive rnrnpensation pursuant to 42 U.S.C. § 300aa-2l(a)(l ), the Secretary of Health and Human Services will issue the fo llowing vaccine compensation payment: A lump sum payment of $85,000.00, to be paid through an ACI-l deposit lo petitioner's counsel's IOLTA account fo r prompt disbursement lo petitioner. This amount represents compensation for all damages that wou ld be avai lable under 42 U.S.C. § 300aa-l5(a).

9. /\s soon as practicable ufter the ent1y of judgment on enti tlement in thi s case, and ofter petitioner has filetl both a proper and timely election to receive compensation pursuant lo 42 U.S.C. § 300aa-2 I(a)( 1), and an application, the parties wi ll subm it to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in any proceeding upon this petition.

l 0. Petitioner and petitioner's attorney represenl 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 !hat 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 ol' thc Socia l Security Ac! (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 idcnti ficd to respondent all known sources of payment for items or services for which the Program is not primari ly liable under 42 U.S. C. § 300aa- l 5(g).

11 . Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragrnph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-1 5(i), subject to the availability of sufficient statutory fonds.

12. The panies and their attorneys fmthcr agree and stipulate that, except for any awnrd for attorneys' fees and litigation costs, and past unreimbursab le expenses, the mont:y proviuc:d 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 petitioner's individual capacity, and on behalf of petitioner's heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the Unitc<l States and the Secretary of Health and Human Services from any and al l actions or causes of action (including agreements, j udgments, claims, damages, loss of services, expenses and all <lemantis of whatever kind or nature) that have been brought, could have been brought, or could be timely brought [n the United States Court of Federal Claims, under the National Vaccine Inj ury Compensation Program, 42 U.S.C. § 300aa- IO ct seq., on account of, or it1 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 fro m, the nu vaccination administered on or about September 22, 2020, as alleged by petitioner in a petition for vaccine compensation fi led on or about January 9, 2023, in the United States Court of Federa l Claims as petition No. 23-20V.

-3- 14. If petitioner should die prior to entry of j udgment, 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 term~ of this Stipulation or if the United Stales Court of Federal Claims fails to enter judgment in conformity with n decision thar is in complete conformity with the terms of this Stipulation, then the parties' selllcment and this Stipulation shall be voidable at the sole discretion of either party.

16. This Stipulat ion expresses a fu ll and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury A.ct of l 986, as amended, except as othe1w ise 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 slated 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 mlhll'c of the injtuy or condition or in the iLems of compensation sought, is not grounds lo mod ify or revise th is agreement.

17. This Stipulation shal l not be construed as an admission by the UniLed States or the Secretary of Ilea Ith and IIuman Services that any vaccine caused petitioner's alleged injury or any other injury or petitioner's current condition, or that petitioner suffered an injury c1..1ntaincd in the Vaccine Injury Table.

18. A.II rights and obligations of petitioner hereunder shall app ly equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

END OF STIPULJ\.TION

-4- Respectfully submitted, PETITIONER:

0-e.1oJ\o.h sLUY)IY\,UJ_ DEBORAH SUMMERS

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

~cbrH L\4 Rea, ll/k'- HEATHER L. PEARLMAN Saltz Mongclu:ai Bendcsky Deputy Director One Liberty Place Torts Branch, Civil Division 1650 Market Street U.S. Department of Justice Ph iladelphia, PA 19 103 P.O. Box 146 (215) 575-3887 Benj1m1in Frankl in Station [email protected] Washington, DC 20044-0 146 AUTHORIZED REPRESENTATIVE ATTORN EY OF RECORD FO R OF THE SECRETARY OF HEALTH RESPONDENT: AND HtJMAN SERVICES: Digitally signed by Jeffrey Jeffrey S. S. Beach -S Beach -5 - - - -- - · l)atc: '-025.04,14 19:11 :1 6 -04•00· CAPT GEORGE REED GRIMES, MD, MPil for 1 Ii~~ d?

RYAN P. MJJ,F.R fh . A¼ Director, Division ofinj ury Trial Attorney Compensation Programs Torts Branch Hea lth Systems Bureau Civil Division Hea lth Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Ilea Ith Benjamin Franklin Station and Iluman Services Washington, DC 20044-0146 5600 Fishers Lane, 08W-25A (202) 305-3027 Rockvi lle, MD 20857 ryan [email protected]

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