Kopolovich v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1805V

DENNIS A. KOPOLOVICH, Chief Special Master Corcoran Petitioner, Filed: April 5, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Edward H. Walter, Jubelirer Pass & Intrieri, P.C., Pittsburgh, PA, for Petitioner.

Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1 On December 9, 2022, Dennis A. Kopolovich filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) following an influenza vaccination he received on December 2, 2021. Petition at 1; Stipulation, filed at April 4, 2024, ¶¶ 2, 4. Petitioner further alleges that his SIRVA symptoms have lasted longer than six months. Petition at ¶¶ 12; Stipulation at ¶¶ 4. “Respondent denies “that Petitioner sustained a SIRVA Table injury; denies that the flu vaccine caused Petitioner’s alleged shoulder injury, or any other injury or condition; and denies that his current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on April 4, 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 $25,000.00 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. 3 IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

IN THE UNITED ST ATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

DENNIS A. KOPOLOVICH, Petitioner, V. No. 22- 1805V Chief Special Master Corcoran SECRETARY OF HEAL TH AND EC F HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipulate to the following matters: I. Denn is A. Kopolovich ("petitioner"), tiled a petition for vaccine compensation under the Nationa l Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (''Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of the influenza ("flu") vaccine, which is contained in the Vaccine Injury Table ("Table"), 42 C.F.R. § 100.3(a).

2. Petitioner received the flu vaccine on or about December 2, 2021 .

3. The vaccine was admin istered within the United States.

4. Petitioner alleges that he sustained a Shoulder Injury Related to Vaccine Administration ("SI RV A") within the time period set forth in the Table, or in the alternative, that his alleged injury was caused-in-fact by the flu vaccine. Petitioner further alleges that he experienced the residual effects of his 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 as a result of his condition.

6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu vaccine caused petitioner's alleged shoulder injury, or any other injury or condition; and denies that his current condition is a sequela of a vaccine-related injury.

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 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-2 I (a)( I), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $25,000.00 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- l 5(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-2 l(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.

I0. Petitioner and his attorney represent that they have identified to respondent al I known sources of payment for items or services for which the Vaccine Program is not primarily liable under 42 U.S.C. § 300aa-1 S(g), including State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act), or entities that provide health services on a pre-paid basis.

11. Payment made pursuant to paragraph 8 of this Stipulation, and any amount awarded pursuant to paragraph 9, wi II be made in accordance with 42 U.S.C. § 300aa- l 5( i) and 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 unreimbursable 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- I 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-l 5(g) and (h).

13. In return for the payment described in paragraph 8, and any amount awarded pursuant to paragraph 9, petitioner, in his individual capacity and on behalf of his heirs, executors, administrators, successors, and/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 Vaccine Program 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 vaccine administered on or about December 2, 2021, as alleged by petitioner in a petition for vaccine compensation filed on or about December 9, 2022, in the United States Court of Federal Claims as petition No. 22-1805V.

14. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court of Federal Claims 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.

I6. 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 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, furth er, 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 petitioner sustained a SI RV A Table injury; that the flu vaccine caused any other injury or condition; or that his current condition is a sequela of a vaccine-related injury.

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:

/;J~a~t!.

DENNIS A. KOPOLOV!-1 ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: ,/ ,,,,.- /,,...--/ ~ ) ,-- ( ~4' :/1,(t, EAR1> H. WALTER, ESQ. HEATHER L. PEARLMAN JUBELIRER, PASS & INTRIERI, P.C. Deputy Director Fort Pitt Boulevard Torts Branch Pittsburgh, PA 15222 Civil Division [email protected] U.S. Department of Justice P.O. Box. 146 Benjamin Franklin Station Washington, D.C.20044-0146

AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffrey s• ~ .7 Digitally signed by Jeffrey S. Beach -5 Beach -S Date: 2024.03.25 14:48:46 -04·00· tor CDR GEORGE REED GRIM ES, MD, MPH FELICIA D. ~ - - Director, Division of Injury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, D.C. 20044-0146 5600 Fishers Lam:, 08W-25A felicia.d.langel@usdoj .gov Rockville, MD 20857

DATE 71/Yfa'.t