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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-208V
LISA BATES, Chief Special Master Corcoran
Petitioner, Filed: November 8, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On January 7, 2021, Lisa Bates 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 left shoulder injury related to vaccine
administration (“SIRVA”), a Table injury, resulting from an influenza (“flu”) vaccine she
received on October 8, 2020. Pet. at 1, ECF No. 1. Petitioner further alleges that the
vaccine was administered in the United States, she experienced the residual effects of
her 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 her condition. Am. Pet.,
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 her current condition.”
Stipulation at 2, ECF No. 39.
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 8, 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 $55,000.00 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
)
LISA BATES, )
)
Petitioner, )
) No. 21-208V
V. ) Chief Special Master Corcoran
) F.:Cf
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
STIPULATION
1be parties hereby stipulate to the following matters:
I. Lisa Bates, 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 of an
influenza ("flu") vaccine, which vaccine is contained in lhe Vaccine lnjury Table (the "Table"),
42 C.F.R. § l 00.3(a).
2. Petitioner received a flu vaccine in her left ann on October 8, 2020.
3. The vaccination was administered within the United Stales.
4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine
Administration ("SIRVA") within the time period set forth in the Table, and further alleges thal
she experienced the residual effects of her injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civ il action
for damages on her behalf as a result of her condition.
6. Respondent denies that petitioner sustained a SIRVA ·1'able 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 her current condition.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the
issues between them shall be settlt:d and that a decision should be entered awarding the
compensation described in paragraph 8 of this Stipulation.
8. As soon as practicablt: 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 lJ.S .C. § 300aa-2 I(a)(I ), the Secretary of I Tealth and Human Services " •ill issue a
lump sum of$55,000.00 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-15(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)( I). and ,m application, the parties will submit to further proceedings
before the special master to award reasonahle attorneys' fees and costs incurred in proceeding
upon this petition.
I0. Petitioner and her attorney represent that compensation to he provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
under 42 U.~.C. § 300aa- I 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 XJX of the Social Security Act (42 ll.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. § JOOaa-
1S(i), subject to the availability of sufficient statutory funds.
12. The pat1ies and their attorneys funher agree and stipulate that, except for any award
for attorneys' fees and litigation costs, and past unreimburscd 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-1 S(g) and (h).
13. fn return for the payments desc.ribed in paragraphs 8 and 9, petitioner, in her
imlh idual 1.:apadty. and on behalf of her heirs, executors. administrators, s uccessors or assigns,
docs forever irrevocably and unconditionally release, acquit and discharge the United States and
the Secretary of llealth and Human Services from any and all actions or causes of action
(including agreemenl<;,judgrnents, claims, damages, loss of serYices, expenses and all demands
of whatever kind or nature) that have been brought, could have been brought, or could be timely
hrought in the Court of Federal Claims. under the National Vaccine Injury Compensation
Program, 42 U.S.C. § 300aa-10 ct 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 ha\·e resulted from, the flu vaccination administered on October 8, 2020. as
alleged by petitioner in a petition for vaccine compensation tiled on or about January 7, 2021, in
the United States Court of Federal Claims as petition No. 2 l-208V.
14. If petitioner should die prior to entry of judgment, this agreement shall be voidable
upon proper notic.c to the C1)un on behalf of e.ither or both of the parties.
of this Stipulation or it' the Cou,1 of FcJeral l'la;m, fai 1., It 11.:ntcr judgment in conl(mnity ,, i1h a
dcc.ision that is in complele wnfonnit) with the terms of this Stipul.,tion. then the partic::.·
settlement and this Stipulation shall be voi<labk a 1 the S(•lc discretion l)f either party.
I 6. This Stipulatilm expresses a full and complete negotiated seulement of liability and
damages clairm:J under the l\ational Chi ldhood Vaccine Injury Ad or 1986. as amended, except
as otherwise Mted in paragraph 9 ahovc..:. Th..:n: is absolutely no agrc:ernent on the part of the
partie,; hereto tn make ,my payrn,:nt or to do an} ad or thing other than i, herein express!) stated
anJ clc.:trly agn:cd to. The parties further agree and understanJ that th1:. av.arJ dcscrihed in this
Stipulation may reflect a co111pr0mi-;e o f the parties· respei.:tive positi,.ms a::: lo liabilily and/or
amount of damages. and further. tlrnt a ch:mge in the nature of the injury or condition or in the
item:- \>f' compc.:11sa1ion s1..1ugh1. is not grounds to modify or revise. th is agreement.
17. !'his Stipulation shal l not be construed as an admission by thl~ Un ited States or the
Secretary of Health anJ Human Sen·ices that the flu vaccine c.aused petitioner's alleged shoulder
injut)' or any other injury.
18. All rights and obligations or petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators. successors, and/or assigns.
F.ND OF STIPULATfON
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Rt:spectfully subm itted,
PETITIONER:
tL.. tl~ ~
LISA BATES
ATTORNEY OF RECORD FOR ACTHORJZED REPRESENTATIVE
PETITIONER: OF THE ATTORJ~V GENERAL:
``~
HEA THF R L. PU.•\.R.1J i°.<\N
Law Offices of Leah V . Ourant, LLC Deputy Director
1717 K Street. NW, Suite 900 Torts Branch
Washington, DC 20006 Civil Division
Tel: (202) 775-9200 U.S. Department of Justice
ldurant@durantllc.com P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRET ARY OF HEALTH RESPONDE:NT:
AND HUMAN SERVICES:
Henry P. ""J -,.It, by '•<!)nf-11 f~l'II}' I'
~
tA<r,1~1, S'J
by Mcmillan -55 °··" 20""0'' ,,••,...... •
CDR GEORGE REED GRIMES, MD, MPH
Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch, Civil Division
Heallh Systems Bureau U.S. Department of Justice
I lealth Resources and Services P.O. Box 146
Administration Benjamin Franklin Station
U.S. Department of Health Washington. DC 20044-0146
and lluman Se.rvices Tel: (202) 616-3665
5600 f ishers Lane, 08W-25A christine.m.bcccr~ usdoj.gov
Rockville, MD 20857
Dated: _JJ}_f/-;; 3_
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