Trezza v. Secretary of Health and Human Services

am the 6111111211 étatefi Qtnurt of erheral QEIaimg OFFICE OF SPECIAL MASTERS N0. 13-231V (Not to be published) Decision by Stipulation; Damages; Influenza (“Flu”) v. Vaccine; Human Papillomavirus (“HPV”); Alopecia.

Respondent.

Mark T. Sadaka, Mark T. Sadaka, LLC, for Petitioners.

Jennifer L. Reynaud, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGESI On April 2, 2013, Rosemary and Wayne Trezza filed a petition on behalf of their minor child, P.T., seeking compensation under the National Vaccine Injury Compensation Program.2 Petitioners allege that as a result of P.T.’s receipt of the influenza (“flu”) vaccine and Human Papillomavirus (“HPV”) vaccine on or about November 3, 2011, RT. suffered from alopecia, and that she experienced the effects of this injury for more than six months.

a'fi Respondent denies that the flu vaccine caused P.T.‘s alleged injury. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed November 5, 2014) that the issues before them can be settled and that a decision should be entered awarding Petitioners compensation.

I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The stipulation awards: A lump sum of $50,000.00 in the form of a check payable to petitioners as the Guardians/Conservators of the estate of P.T., for the benefit of P.T.

This amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). Stipulation 1] 8.

I approve a Vaccine Program award in the requested amounts set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.3 IT IS SO ORDERED.

Brian H. Corcoran Special Master Case 1:13—vv-00231—LJNJ Document 38, Filed 11/05/14 Page 1 of 6

=12; in:

Case 1:13-vv-00231-UNJ Document 38 Filed 11/05/14. Page 2 of 6 5. Petitioners represent that there has been no prior award or settlement ofa civil action for damages on behalf‘oi‘l’."l'. as a result other condition.

6. Respondent denies that l-’,T.’s alleged injury and residual effects were caused-intact by either the Hl’V or Flu vaccine. Respondent further denies that the either the HPV or flu vaccine caused Pfl‘. 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 settled and that a decision should be entered awarding the compensation described in paragraph 8 ofthis Stipulation.

8. As soon as practicable after an entry ot‘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 Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum ot‘$50,000.00 in the form of'a check ayabie to petitioners as the Guardians/Conservators of the estate of P. 'l' for the benefit of P. T-. 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 ofjudgment on entitlement in this case, and after petitioners have filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa—2](a)(l), and an application, the parties will submit to further proceedings before the special master to award reasonable attomeys’ fees and costs incurred in proceeding upon this petition. lO. Petitioners and their 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 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be expected

Case 1:13-vv700231—UNJ Document 38 Filed 11/05/14 Page30f6 .. to be made under any State compensation programs, insurance policies, Federal or State health benefits programs (other than ’l‘itie XlX ofthe Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis.

1 1. Payments made pursuant to paragraphs 8 and 9 ofthis Stipulation will be made in accordance with 42 U.S.C. § BOOM-150), subject to the availability of sufficient statutory funds.

12. The parties and their attorneys further agree and stipulate that, except for any award for attorneys‘ fees, litigation costs, and past nnreimbursable expenses, the money provided pursuant to this Stipulation will be used solely for the benefit OFFER, as contemplated by a strict‘ construction of42 U.S.C. § 300an~15(u) and (d), and subject to the conditions of42 U.S.C. § 300aa-15(g) and (h).

13. Petitioners represent that they presently are, or within 90 days ot'tlte date oi" judgment will become, duly authorized to serve as guardian of P.T.’s estate under the laws of the State of New Jersey. No payments pursuant to this Stipulation shall be made until petitioners provide the Secretary with documentation establishing their appointment as guardians/conservators ofP.T.’s estate. if petitioners are not authorized by a court of‘ competent jurisdiction to serve as guardians/conservators of P.'l‘.'s estate at the time a payment pursuant to this Stipulation is to be made, any such payment Shall be paid to the party or parties appointed by a court ofcompetentjurisdiction to serve as guardian/conservator ofP.'l‘.‘s estate upon submission of written documentation of such appointment to the Secretary. l4. in return for the payments described in paragraphs 8 and 9, petitioners, in their individual capacity, and as legal representatives of'PIII. on behalfofher heirs, executors, administrators, successors or assigns, do forever irrevocably and unconditionally release, acquit 'rit'.

Case 1:13-vv-00231—UNJ Document 38 Filed 11/05/14 Page 4 of 6 and discharge the United States and the Secretary ofHealth and Human Services from any and all actions or causes ofaction (including agreements, judgments, claims, damages, loss ofservices, expenses and all demands oiwhatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court ofFedcral 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 i’.'l‘, resulting From, or alleged to have resulted from a HPV or flu vaccination administered on November 3. 20'] l, as alleged by petitioners in a petition for vaccine compensation filed on or about April 2, 2013, in the United States Court of Federal Claims as petition No. 13-23 l V 15. lfPT. should die prior to entry ofjudgment, this agreement shall be voidable upon proper notice to the Court on behalfofeithcr or both of the parties.

16. Ifthe special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enterjudgment in conformity with a decision that is in complete conformity with the terms ofthis Stipulation, then the parties" settlement and this Stipulation shall be voidable at the sole discretion of either party. l7. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine injury Act of1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part ofthe 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

Case 1:13—vv-00231—UNJ Document 38 Filed 11/05/14 Page 5 of 6 amount ofdamages, and further, that a change in the nature ofthe injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement.

18. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that either the HPV or flu vaccine caused P.T. to suffer alopecia or any other injuries.

19. All rights and obligations of petitioners hereunder shall apply equally to petitioners‘ heirs, executors, administrators, successors, and/or assigns, as legal representatives oFP."l‘.

END OF STIPULATION Case 1:13-vv-00231-UNJ Document 38 Filed 11/05/14 Page 6 of 6

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