# Kriss v. Secretary of Health and Human Services > United States Court of Federal Claims · January 6, 2025 URL: https://www.frixlaw.com/law-library/cases/10774443 ## Case - **Court:** United States Court of Federal Claims - **Decided:** January 6, 2025 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Brian H. Corcoran - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10774443 ## Opinion text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10774443. Public record. Not legal advice.