Dipiazza v. Secretary of Health and Human Services

In the Gnited States Court of Federal Clans OFFICE OF SPECIAL MASTERS ke RK KK KKK KK KR KK KR KK OK KOK JULIA DIPIAZZA, * * No. 20-328V Petitioner, ** Special Master Christian J. Moran Ed V. ** Filed: December 20, 2021 Ed SECRETARY OF HEALTH ** Stipulation; influenza (“‘flu’’) vaccine; AND HUMAN SERVICES, ** SIRVA; shoulder injury.

Ed Respondent. ** ke RK KK KKK KK KR KK KR KK OK KOK Michael G. McLaren, Black McLaren, et al., PC, Memphis, TN, for Petitioner; Althea W. Davis, United States Dep’t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION' On December 14, 2021, the parties filed a joint stipulation concerning the petition for compensation filed by Julia Dipiazza on March 24, 2020. Petitioner alleged that the influenza (“flu”) vaccine she received on November 16, 2018, which is contained in the Vaccine Injury Table (the “Table’’), 42 C.F.R. §100.3(a), caused her to suffer from a left shoulder injury related to vaccination administration (““SIRVA”). Petitioner further alleges that she suffered the residual effects of this injury for more than six months. 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 condition.

Respondent denies that the flu vaccine caused petitioner to suffer from SIRVA or any other injury.

' The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).

Any redactions ordered by the special master will appear in the document posted on the website.

Nevertheless, the parties agree to the joint stipulation, attached hereto. The undersigned finds said stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

Damages awarded in that stipulation include: A lump sum payment of $18,500.00 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).

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment according to this decision and the attached stipulation.”

IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master

* Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

JULIA DIPIAZZA, ) ) Petitioner, ) No. 20-328V ) Special Master v. ) Christian Moran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ) STIPULATION The parties hereby stipulate to the following matters: 1. Julia Dipiazza, petitioner, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 et seq. (the “Vaccine Program”).

The petition seeks compensation for injuries related to petitioner’s receipt of the influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).

2. Petitioner received a flu vaccination on November 16, 2018.

3. The vaccine was administered within the United States.

4. Petitioner alleges that she sustained a left shoulder injury related to vaccine administration (SIRVA), as defined in the Table, within the Table time period following administration of the flu vaccine, and further alleges that she suffered the residual effects of this alleged injury for more than six months. In the alternative, petitioner alleges that her shoulder injury and/or other injuries were caused-in-fact by the flu vaccine she received.

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 condition.

6. Respondent denies that petitioner sustained a SIRVA Table injury, and further denies the petitioner’s alleged left shoulder injury or any other injury or condition, was caused by her receipt of the flu vaccine.

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 $18,500.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 US.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 42 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 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 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 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 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 flu vaccination administered on or around November 16, 2018, as alleged by petitioner in a petition for vaccine compensation filed on or about March 24, 2020, in the United States Court of Federal Claims as petition No. 20-328V.

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. 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 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 flu vaccine caused petitioner’s alleged shoulder injury or any other injury or 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 Respectfully submitted, PETITIONER: nin Ry JULIA DIPIAZZA

ATTORNEY OF RECORD FOR PETITIONER: Vell Ln Lay Loch MICHAEL G. etal Lee fa ESQUIRE ey Black McLaren Jones Ryland & nee Oak Court Drive, Suite 360 Memphis, TN 38117 (901) 762-0535 [email protected]

AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES: Dale Wahler, PN Se, APLV fer 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 Dated: iz|ty ow]

AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL: HEATHER L. PEARLMAN Deputy Director Torts Branch Civil Division U. S. Department of Justice Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 ATTORNEY OF RECORD FOR RESPONDENT: WAY4ea Walle, DAWA ba dlecdtirLl # ALTHEA WALKER DAVIS Senior Trial Counsel Torts Branch Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 (202) 616-0515 [email protected]