Opinion

Kriss v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Jan 6, 2025
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 23-0585V

PAUL KRISS, Chief Special Master Corcoran

Petitioner,

v. Filed: December 5, 2024

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for

Petitioner.

Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for

Respondent.

DECISION ON JOINT STIPULATION1

On April 26, 2023, Paul Kriss 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 October 8, 2021, 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as

a consequence of the flu vaccine, and further alleges that he experienced the residual

effects of this injury for more than six months.

Respondent denies that Petitioner suffered the onset of his alleged SIRVA within

the Table timeframe; denies that the flu vaccine caused Petitioner’s alleged shoulder

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).

injury or any other injury; and further denies that his current disabilities are a sequela of

a vaccine-related injury.

Nevertheless, on December 5, 2024, the parties filed the attached joint stipulation,3

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 $24,000.00 in the form of a check payable to Petitioner.

B. A lump sum of $143.35, representing reimbursement of a Medicaid lien

for services rendered to Petitioner by the state of North Carolina, in the

form of a check payable jointly to Petitioner and the North Carolina

Division of Health Benefits:

Office of the Controller

2022 Mail Service Center

Raleigh, NC 27699-2022

Re: Case Number 386472

Petitioner agrees to endorse this check to the Division of Health Benefits.

Stipulation at ¶ 8. These amounts represent 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.4

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

3

In attaching the parties’ joint stipulation, I have omitted the last page – a VineSign form that includes

personal information regarding Petitioner.

4 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.

2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

PAUL KRISS,

Petitioner, No. 23-585V

Chief Special Master Corcoran

V. SPU

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

STIPULATION

The parties hereby stipulate to the following matters:

I. Petitioner, Paul Kriss, filed a petition for vaccine compensation under the National

Vaccine lnjmy 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, whid1 vaccine is contained in the Vaccine Injmy Table (the "Table"), 42 C.F.R. §

I00.3 (a).

2: Petitioner received a flu vaccine on or about October 8, 2021.

3. The vaccine was administered within the United States.

4. Petitioner alleges that he suffered a Shoulder Injury Related to Vaccine Administration

("SIRVA") as a consequence of the flu immunization he received on or about October 8, 2021,

and fm1her alleges that he suffered the residual effects of this injmy 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.

Page I of 5

6. Respondent denies that petitioner suffered the onset of his alleged SIRVA within the

Table timeframe; denies that the flu vaccine caused petitioner's alleged shoulder injmy or any

other injury and further denies that his current disabilities are 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-21(a)(l), the Secreta1y of Health and Human Services will issue the

following vaccine compensation payments:

a. A lump sum of$24,000.00 in the form ofa check payable to petitioner; and

b. A lump sum of $143.35, 1 representing reimbursement of a Medicaid lien

for services rendered to petitioner by the State of North Carolina, in the form

of a check payable jointly to petitioner, and the North Carolina Division of

Health Benefits:

Office of the Controller

2022 Mail Service Center

Raleigh, NC 27699-2022

Re: Case Number 386472

Petitioner agrees to endorse this check to the Division of Health Benefits.

9. As soon as practicable after the enhy 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-2l(a)( l), and an application, the parties will submit to further proceedings before the

1

This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or

cause of action the State of North Carolina may have against any individual as a result of any

Medicaid payments the North Carolina Medicaid program has made to or on behalf of petitioner,

as a result of his alleged vaccine-related iltju1y suffered on or about October 8, 2021, under Title

XIX of the Social Security Act, see 42 U.S .C. § 300aa- 1S(g), (h).

Page 2 ofS

special master to award reasonable attorneys' fees and costs incu1Ted in proceeding upon this

petition.

I0. Petitioner and his attorney represent that they have identified to respondent all known

sources of payment for items or services for which the Program is not primarily liable under 42

U.S.C. § 300aa-15(g), including 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 entities that provide health services on a prepaid basis.

11. Payments made pursuant to paragraph 8 of this Stipulation and any amounts awarded

pursuant to paragraph 9 will be made in accordance with 42 U.S.C. § 300aa-15(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's 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-15(g) and (h) .

13. In rehm1 for the payments described in paragraphs 8 and 9, petitioner, in his individual

capacity, and on behalf of his heirs, executors, administrators, successors, and assigns, does forever

irrevocably and unconditionally release, acquit and discharge the United States and the Secreta1y

of Health and Human Services from any and all actions or 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 United

States Court of Federal Claims, under the National Vaccine htjury 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

Page 3 of 5

unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or

alleged to have resulted from, the flu vaccination administered on or about October 8, 2021, as

alleged by petitioner in a petition for vaccine compensation filed on or about April 26, 2023 in the

United States Comt of Federal Claims as petition No. 23-585V.

14. If petitioner should die prior to enhy of judgment, 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 tenns of

this Stipulation or if the United States Court of Federal Claims fails to enter judgment in

conformity with a decision that is in complete conformity with the tenns 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 Inju1y Act of 1986, as amended, except

as otherwise noted in paragraph 9 above. There is absolutely no agreement on the patt of the

parties hereto to make any payment or do any act or thing other than is herein expressly stated and

clearly agreed to. The patties 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 nah1re 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

Secretaty of Health and Human Services that the flu vaccine caused petitioner's alleged shoulder

injuty or any other injmy or any of his current disabilities.

18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

Page 4 of5

Respectfully submitted,

PETITIONER:

PAUL KRISS

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIV E

PETITIONER: OF THE ATTORNEY GENERAL:

~ v:

,AA ' ;),

fl'L(~

LEAH V. DURA~ ~ HEATHER L. PEARLMAN

LAW OFFICES OF LEAH V~ URANT, PLLC Deputy Director

1717 K Sh·eet, NW Torts Branch

Suite 900 Civil Division

Washington, D.C. 20006 U. S. Department of Justice

(202) 775-9200 P. 0. Box 146

ldurant@durantllc.com Benjamin Franklin Station

Washington, D.C. 20044-0146

AUTHORIZED REPRESENTATIV E OF ATTORNEY OF RECORD FOR

THE SECRET ARY OF HEAL TH AND RESPONDENT:

HUMAN SERVICES:

Jeffrey 5. ~i~~:tted by Jeffrey

µ_ ~ 6 ~ r ' l ~ J t t'

Beach -5

KJt-, ~ ~ -PL ~

Date: 2024.11.1210:11 :06

______ -0s·oo· for

CAPT GEORGE REED GRIMES, MD, MPH MALLORI B. OPENCHOWSKI

Director, Division of htjury Trial Attorney

Compensation Programs 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. Department of Health Washington, D.C. 20044-0146

and Human Services Tel: (202) 305-0660

5600 Fishers Lane, 08W-25A mallori. b.openchowski@usdoj.gov

Rockville, MD 20857

Dated: izdos/VJVJ

Page 5 of5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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