Franceschini v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: May 14, 2019 * * * * * * * * * * * * * * * * * * * UNPUBLISHED KIRK FRANCESCHINI, * * No. 16-1112v Petitioner, * v. * Special Master Gowen * SECRETARY OF HEALTH * Decision on Damages; Stipulation; Influenza AND HUMAN SERVICES, * (“Flu”); Tetanus-diphtheria-acellular * pertussis (“Tdap”); Septic Arthritis.

Respondent. * * * * * * * * * * * * * * * * * * * * Robert J. Killeen, Killeen & Stern, P.C., Houston, TX, for petitioner.

Ryan D. Pyles, United States Department of Justice, Washington, DC, for respondent.

DECISION ON DAMAGES1 On September 7, 2016, Kirk Franceschini (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleged that an influenza (“flu”) vaccination and a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination, that he received on November 6, 2013, caused him to suffer either brachial neuritis or a shoulder injury related to vaccine administration (“SIRVA”). The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.

On March 20, 2017, respondent filed a report pursuant to Vaccine Rule 4(c), in which respondent recommended that petitioner be awarded compensation for septic arthritis in his left shoulder. Respondent’s Report (“Resp. Rept.”) (ECF No. 18) at 1. Respondent further agrees Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the opinion will be available to anyone with access to the Internet. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the court’s website without any changes. Id. The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. that petitioner continued to seek treatment for his arm/ shoulder pain for more than six months after the onset of his condition and he also had inpatient hospitalization. Id. at 4-5.

Also on March 20, 2017, Chief Special Master Dorsey, then presiding over the case in the SPU, issued a ruling that petitioner was entitlement to compensation. Ruling on Entitlement (ECF No. 19). The case was moved to the damages phase. On February 8, 2018, the case was transferred to the undersigned for further proceedings. Notice of Reassignment (ECF No. 40).

On May 14, 2019, the parties filed a stipulation providing that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 58), attached hereto as Appendix A.

The stipulation awards: 1) A lump sum of $256,000.00, in the form of a check payable to petitioner. This amount represents all damages that would be available under 42 U.S.C. § 300aa-15(a) for injuries related to, and/ or alleged to be related to, petitioner’s receipt of the flu and/ or Tdap vaccines.

I find the stipulation reasonable and I adopt it as the decision of the Court in awarding damages, on the terms set forth therein. Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master

Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a).