VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00563 Package ID: USCOURTS-cofc-1_21-vv-00563 Petitioner: Kelly Hincks Filed: 2021-01-11 Decided: 2024-09-05 Vaccine: Tdap Vaccination date: 2018-12-07 Condition: cellulitis Outcome: compensated Award amount USD: 35000 AI-assisted case summary: Kelly Hincks filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered cellulitis caused by a Tdap vaccine she received on December 7, 2018. She claimed residual effects from the injury for more than six months. The respondent, the Secretary of Health and Human Services, denied that the vaccine caused her cellulitis or any other injury. Despite this denial, the parties reached a joint stipulation to settle the case. The court adopted the stipulation, awarding Kelly Hincks $35,000.00 as a lump sum payment. This amount is intended to cover all damages available under the Vaccine Act. The stipulation also addressed the process for awarding attorneys' fees and costs. The case was resolved through a settlement, avoiding a contested hearing on the merits of causation. The settlement represents a compromise of the parties' positions. Theory of causation field: Off-Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-00563-0 Date issued/filed: 2024-09-05 Pages: 8 Docket text: PUBLIC DECISION (Originally filed: 08/05/2024) regarding 54 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-00563-UNJ Document 58 Filed 09/05/24 Page 1 of 8 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0563V KELLY HINCKS, Chief Special Master Corcoran Petitioner, Filed: August 5, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner. Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On January 11, 2021, Kelly Hincks2 filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the “Vaccine Act”), which she amended on June 28, 2022.Petitioner alleges that shesuffered cellulitis that was caused-in-fact by a tetanus diphtheria acellular pertussis (“Tdap”) vaccine received on December 7, 2018. Amended Petition at 1; Stipulation, filed August 5, 2024, at ¶¶ 2-4. Petitioner further alleges that the Tdap vaccine was administered in the United States, she suffered residual effects of her injury for more than six months, and neither Petitioner, nor any other party, has ever filed any action or received compensation in the form of an award or settlement for Petitioner’s vaccine-related injury. Amended Petitionat¶¶2, 9-13;Stipulationat ¶¶3-5.“Respondent denies that petitioner’s 1Because 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. 2At the time of filing, Petitioner’s last name was Hilley. On May 1, 2023, the caption was amended to reflect Petitioner’scurrent last name of Hincks (ECF No. 32). 3National 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). Case 1:21-vv-00563-UNJ Document 58 Filed 09/05/24 Page 2 of 8 alleged cellulitis or its residual effects were caused-in-fact by the Tdap vaccine and denies that the Tdap vaccine caused petitioner any other injury or petitioner’s current condition.” Stipulation at ¶ 6. Nevertheless, on August 5, 2024, 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 $35,000.00 in the form of a check payable 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.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 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 Case 1:21-vv-00563-UNJ Document 58 Filed 09/05/24 Page 3 of 8 IN THE UNITED STA TES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS KELLY IDNCKS, Petitioner, No. 21-563V (ECF) Chief Special Master Corcoran V. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: 1. Kelly Hincks ("petitioner"), 1 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 a tetanus, diphtheria, and acellular pertussis (''Tdap") vaccine. 2 This vaccine is contained in the Vaccine Injury Table (the ''Table"), 42 C.F.R. § 100.3. 2. Petitioner received a Tdap vaccine on December 7, 2018. 3. The vaccine was administered within the United States. 1 Petitioner filed her Petition under her fonner name, Kelly Hilley. See Petition, ECF No. I. She subsequently changed her name and, on May I, 2023, filed a Motion to Amend the Caption in her case. ECF No. 31. 2 Petitioner initially alleged a Table shoulder injury but filed an Amended Petition on June 28, 2022 alleging "cellulitis caused-in-fact by the tetanus vaccination." ECF No. 18. l Case 1:21-vv-00563-UNJ Document 58 Filed 09/05/24 Page 4 of 8 4. Petitioner alleges that she suffered cellulitis that was caused-in-fact by the Tdap vaccine. She further claims that she experienced the residual effects of the alleged 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 her behalf as a result of her alleged injuries. 6. Respondent denies that petitioner's alleged cellulitis or its residual effects were caused-in-fact by the Tdap vaccine and denies that the Tdap vaccine caused petitioner any other injury or petitioner's 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 ofj udgment 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)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $35,000.00 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 ofj udgment 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)(l), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. 2 Case 1:21-vv-00563-UNJ Document 58 Filed 09/05/24 Page 5 of 8 l 0. Petitioner and her 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-15(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. 11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to para~ 9 of this Stipulation 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 a~ ey'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 of4 2 U.S.C. § 300aa-l 5{a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary ofH ealth 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 Court of Federal Claims, under the National Vaccine Injury 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 unknown, suspected or unsuspected personal injuries to or death of petitioner resulting 3 Case 1:21-vv-00563-UNJ Document 58 Filed 09/05/24 Page 6 of 8 from, or alleged to have resulted from, the Tdap vaccine administered on or about December 7, 2018, as alleged in a petition for vaccine compensation filed on or about January 11, 2021, and an amended petition filed on or about June 28, 2022, in the United States Court of Federal Claims as petition No. 21-563V. 14. Ifp etitioner should die prior to entry ofj udgment, this agreement shall be voidable upon proper notice to the Court on behalfo f either or both of the parties. 15. If the 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 oft he 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 Tdap vaccine caused petitioner's alleged injuries or any other injury or her current disabilities, or that petitioner suffered an injury contained in the Vaccine Injury Table. 4 Case 1:21-vv-00563-UNJ Document 58 Filed 09/05/24 Page 7 of 8 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION 5 Case 1:21-vv-00563-UNJ Document 58 Filed 09/05/24 Page 8 of 8 Respectfully submitted, PETITIONER: KELLY HINCKS ATTORNEY OF RECORD AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL: ~~.~rNrt~TJTnm.t~ - ~•4~-L ~ v J ? ~ LiB! Tl-lER L. PEARLMAN Br l, Deputy Director ining Road, Suite 20 Torts Branch Dresher, PA 19025 Civil Division Tel: (215) 885-1655 U.S. Department of Justice Email: bridget@myvaccinelawyer.com P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OFTHESECRETARYOFHEALTH RESPONDENT: AND HUMAN SERVICES: ~~:~~t~::: . Jeffrey S. ~ Beach -5 . =:.~'::.:;;' 1or ~'lJ► 1?_1 ~ !.