Donofrio v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-0058V

CELIA DONOFRIO, Chief Special Master Corcoran Petitioner, Filed: April 1, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Julianna Rose Kober, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On January 18, 2023, Celia Donofrio 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 she suffered a shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, after receiving the influenza (“flu”) on October 11, 2021. Petition at ¶¶ 2, 16; Stipulation, filed Apr. 1, 2024, ¶¶ 1-2, 4. Petitioner further alleges that she received the vaccine within the United States, that she suffered the residual effects of her SIRVA for more than six months, and that neither she nor any other party has filed a civil action or received compensation for her SIRVA. Petition at ¶¶ 12-14; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner suffered a Table SIRVA injury; denies that the vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that [P]etitioner’s current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on April 1, 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 $18,400.00 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 STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

CELIA DONOFRIO, Petitioner, No. 23-0S8V Chief Special Master Corcoran v. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent

STIPULATION The parties hereby stipulate to the following matters: 1. Petitioner filed a petition for vaccine compensation Wlder the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries alJegedly related to petitioner's receipt ofthe influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a).

2. Petitioner received the flu vaccination on or about October 11, 2021.

3. The vaccine was administered within the United States.

4. Petitioner alleges that the flu vaccine caused her to develop a shoulder injury related to vaccine administration ("$IRVA") within the time period set forth in the Table and that she experienced the residual effects of this condition 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 her condition.

6. Respondent denies that petitioner suffered a Table SIR.VA injury; denies that the vaccine caused petitioner's alleged shoulder injury. or any other injury; and denies that petitioner's current condition is a sequeJa 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. A3 soon as practicable after an entry ofjudgment reflecting a decision consistent with the tenns of this Stipulation, and after petitioner bas 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 foJtowing vaccine compensation payments: A lump sum of $18,400.00 in the fonn of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-lS(a).

9. AB soon as practicable after the entry ofjudgment 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)(l), and an application, the parties wiU 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 they have identified to respondent all known sources of payment for items or services for which the Program is not primarily JiabJe under 42 U.S.C. § 300aa-15(g), including State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social SecW'ity 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 amount awarded pursuant to paragraph 9, 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 stipuJate that, except for any award for attorney's fees and litigation costs, and past unreimbursable expenses, the money provided pursuant to this StipuJation will be used solely for the benefit of petitioner as contemplated by a strict construction of42 U.S.C. § 300aa-IS(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 paragraph 8, and any amount awarded pursuant to paragraph 9, petitioner, in her individual capacity, and on behalf of her 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 National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-IO 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 resuJting from, or alleged to have resulted from, the flu vaccine administered on or about October 11, 2021, as alleged by petitioner in a petition for vaccine compensation filed on or about January 8, 2023, in the United States Court of Federal Claims u petition No. 23-58V.

14. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable upon proper notice to the Com1 on behalf of either or both of the parties.

15. Jfthe special master fails to issue a decision in complete confonnity 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 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' JeSpCCtive positions as to liability and/or amount of damages 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 17. This Stipulation shall not be construed as an admi~ion by the United States or the Secretary of Health and Human Services that the flu vaccine caused petitioner's alleged SIRVA or any other injury or condition. or that petitioner suffered an injury contained in the Vaccine Injury Table.

18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, su~rs, and/or assigns.

END OF STIPULATION I I I I I I I

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Rapectfully submitted.

PETmONER:

.TDlRl'ilEY OF RECORD Ji'OR AUTHORIZED REPRESENTATIVE ONER: OP THE ATIORNEY GENERAL:

, ~ { . l Q_.e /J 1,,.Ll.~ HEATHER L PEARLMAN MUU.Eltutu- Deputy Director Twining Road, Suite 208 Torts Branch Dresher, PA, 19025 Civil Division (215) 885-1655 U.S. Department ofJustice [email protected] P.O.Box 146 Benjamin Franklin Station Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE A1TORNEY OF RECORD FOR OP THE SECRETARY OJI' HEALTH RESPONDENT: AND HUMAN SERVICl!'3: Jeffrey S. =:=?

Beach -S =, 2024.0.J.os l ~ 1pr CDR. GEORGE REED GRIMES, MD, MPH Director. Diviaion of l.qjury Compensation Trial Attorney Programs Torts Branch Health Systems Bureau Civil Division Health~ aod-Scrvicca - U.S. Departmmt ofJliifice ••- - - Administration P.O.Box 146 U.S. Department ofHealth and Human Services Benjamin Franklin Station S600 Fishers Lane Wubingto,\, OC 20044-0146 Partlawn Building. 08W-2SA (202) 742-6375 Rockville, MD 20857 juJitnna r,[email protected]

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