Rubino v. Secretary of Health and Human Services

Sn the Guited States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1980V UNPUBLISHED

JOSEPH RUBINO, Chief Special Master Corcoran Petitioner, Filed: November 24, 2021 V. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; HUMAN SERVICES, Pneumococcal Conjugate Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA)

Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Dhairya Divyakant Jani, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION’ On December 30, 2019, Joseph Rubino filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.? (the “Vaccine Act”). Petitioner alleges that he suffered a right shoulder injury related to vaccine administration (“SIRVA’) as a result of a pneumococcal conjugate vaccine he received on October 31, 2018. Petition at Preamble; Stipulation, filed at November 23, 2021, ¥| 4.

Petitioner further alleges that his injuries lasted for more than six months. Petition at 4: Stipulation at 9/4. Respondent denies that petitioner sustained a SIRVA injury within the Table time period, and further denies that the pneumococcal conjugate vaccine caused petitioner to suffer a right shoulder injury or any other injury or his current condition. ” Stipulation at J] 6.

Nevertheless, on November 23, 2021, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. | find the

If, upon review, | agree that the identified material fits within this definition, | will redact such material from public access.

Pursuant to the terms stated in the attached Stipulation, | award the following compensation: A lump sum of $30,575.00, in the form of a check payable to Petitioner.

Stipulation at J 8. This amount represents compensation for all items of damages that would be available under Section 15(a). /d. | 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 the court is directed to enter judgment in accordance with this decision.* ITIS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS eRe OR KK KK KK KKK KK KK KKK KK RK KK KK KOK * * JOSEPH RUBINO, * * Petitioner, * * V. * No. 19-1980V (ECF) * CHIEF SPECIAL MASTER * BRIAN H. CORCORAN SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * eK KK KKK KK KKK KK KK KKK KK KKK KKK KK STIPULATION The parties hereby stipulate to the following matters: 1. Joseph Rubino, petitioner, 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 pneumococcal conjugate vaccine, which is a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).

2. Petitioner received the pneumococcal conjugate vaccine on October 31, 2018.

3. The vaccination was administered within the United States.

4. Petitioner alleges that he suffered from a right shoulder injury related to vaccination administration (“SIRVA”) as a result of receiving the pneumococcal conjugate vaccine, and suffered the residual effects of this 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 his behalf as a result of his condition.

6. Respondent denies that petitioner sustained a SIRVA injury within the Table time period, and further denies that the pneumococcal conjugate vaccine caused petitioner to suffer a right shoulder injury or any other injury or his 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 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)(1), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $30,575.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 USS.C. § 300aa-15(a).

9. As soon as practicable after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to U.S.C. § 300aa-21(a)(1), 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.

10. Petitioner and his 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 of this Stipulation and any amounts awarded pursuant to paragraph 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 attorneys’ fees and litigation costs, and past unreimbursed 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 return for the payments described in paragraphs 8 and 9, petitioner, in his individual capacity, and on behalf of his heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary 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 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 from, or alleged to have resulted from, the pneumococcal conjugate vaccination administered on October 31, 2018, as alleged by petitioner in a petition for vaccine compensation filed on or about December 30, 2019, in the United States Court of Federal Claims as petition No. 19- 1980V.

14. If petitioner should die prior to entry 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 conformity with the terms 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 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 Secretary of Health and Human Services that the pneumococcal conjugate vaccine caused petitioner to have a right shoulder injury, or any other injury or his current condition.

18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION mR Nov 14 21 10:22p william Hurski Respectfully submitted, PETITIONER: f ATTORNEY OF RECORD FOR PETITIONER: Ko Brand PAUL R. BRAZIL Counsel for Petitioner Muller Brazil, LLP Twining Road, Suite 208 Dresher, PA 19025 [email protected]

AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES: Dake Wushlar, PN Se, fee TAMARA OVERBY Acting Director, Division of Injury Compensation Programs Health Systems Bureau Health Resources and Services Administration U.S. Department of Health and Human Services 5600 Fishers Lane, 08N146B Rockville, MD 20857 pate: [1/2211 6315846818 p.1 AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL: Hooda. Ll Fear lmar b4 Qosbnoe& HEATHER L, PEARLMAN Deputy Director Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 ATTORNEY OF RECORD FOR RESPONDENT: Thai na Tans cep KLaB. xb cote

DHAIRYA D. JANI Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 202-616-4356 Email: [email protected]