Cameron v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1217V
ROBERT CAMERON, Chief Special Master Corcoran
Petitioner, Filed: November 20, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On September 16, 2020, Robert Cameron 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 left shoulder injury related to vaccine
administration (“SIRVA”), a Table injury, resulting from an influenza (“flu”) vaccine he
received on November 21, 2018. Pet. at 1, ECF No. 1. Petitioner further alleges that the
vaccine was administered in the United States, he experienced the residual effects of his
condition for more than six months, and there has been no prior award or settlement of a
civil action for damages on Petitioner’s behalf as a result of his condition. Am. Pet. at 16,
ECF No. 18. Respondent denies “that [P]etitioner sustained a SIRVA Table injury, denies
that [P]etitioner’s alleged shoulder injury was caused-in-fact by the flu vaccine, and denies
that the flu vaccine caused [P]etitioner any other injury or his current condition.”
Stipulation at 2, ECF No. 73.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).
Nevertheless, on November 20, 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 $95,000.00 in the form of a check payable to Petitioner.
Stipulation at 2. 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
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
ROBERT CAMERON,
)
Petitioner, )
) No. 20-1217V (ECF)
v. ) Chief Special Master Corcoran
)
)
SECRETARY OF HEALTH
)
AND HUMAN SERVICES,
)
)
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
I. Robert Cameron ("petitioner") filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l Oto -34 ("Vaccine
Program"). 1 The petition, as amended, seeks compensation for injuries allegedly related to
petitioner's receipt of the influenza ("flu") vaccine, which vaccine is contained in the Vaccine
Injury Table (''Table"), 42 C.F.R. § I 00.3(a).
2. Petitioner received the flu vaccination in his left shoulder on November 21, 2018.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he suffered a Shoulder Injury Related to Vaccine
Administration ("SIRVA") within the time period set forth in the Table, and that he experienced
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 on his behalf as a result of his condition.
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After filing his initial petition for vaccine compensation on September 16, 2020, petitioner
subsequently filed an amended petition on March 16, 2021.
6. Respondent denies that petitioner sustained a SIRVA Table Injury, denies that
petitioner's alleged shoulder injury was caused-in-fact by the flu vaccine, and denies that the flu
vaccine caused petitioner any other injury or his current condition.
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)(I), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $95,000.00 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 prflcticable 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 I (a)( I), and an application, the parties will submit to further proceedings before
the special master to award reasonable attorney fees and costs incurred in proceeding upon this
petition.
I 0. Petitioner and his 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.
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11. Payment made pursuant to paragraph 8 of this Stipulation, and any amounts awarded
pursuant to paragraph 9 of this Stipulation, will be made in accordance with 42 U.S.C. § 300aa-
I S(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 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- I 5(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 his
ind ividual capacity and on behalf of his 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, 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-l 0, 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 flu vaccine administered on or about November 21, 2018, as
alleged by petitioner in a petition filed on September I 6, 2020, and an amended petition filed on
March I 6, 2021, in the United States Court of Federal Claims as petition No. 20- l 2 l 7V.
14. If petitioner should die prior to entry of judgment, this agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
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15. If the Chief Special Master fails to issue a decision in complete conformity with the
tenns 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 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 flu vaccine caused petitioner's alleged shoulder
injury or any other injury.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully submitted,
PETITIONER:
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
Ro-n.1d ef/uwu,_ ¼.,)/. AJJJ.Y '-- M , frMw\ 1::1-- D~
RONALD C. HOMER, ESQ. `` HEATHER L. PEARLMAN
Conway Homer, P.C. Deputy Director
16 Shawmut Street Torts Branch
Boston, MA 02116 Civil Division
(617) 695-1990 U.S. Department of Justice
rhomer@ccandh.com P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OFTHESECRETARYOFHEALTH RESPONDENT:
AND HUMAN SERVICES:
``~
Digitally signed by
Hen ry P• Henry P. Mcmillan ·SS
by
Mcmillan -S5 Oate:2023.10.31
12:S3:19-04'00'
CDR GEORGE REED GRIMES, MD, MPH
Director, Division oflnjury 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, DC 20044-0146
5600 Fishers Lane, 08W-25A (202) 532-5464
Rockville, MD 20857 Benjamin.P.Warder@usdoj.gov
Dated: I I / Z o / 2 o 2 ~
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