Parra v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0564V

RAUL DIAZ PARRA, Chief Special Master Corcoran Petitioner, Filed: March 7, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.

Bridget Corridon, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On January 11, 2021, Raul Diaz Parra 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”) as a result of a tetanus-diphtheria-acellular-pertussis (“Tdap”) vaccine that was administered on March 13, 2020. Petition at 1; Stipulation, filed on March 5, 2024, at ¶¶ 2, 4. Petitioner further alleges he received the vaccine in the United States, that he experienced the residual effects of his symptoms for more than six months, and there has been no prior award or settlement of a civil action as a result of his condition.

Petition at ¶ 2; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner sustained a SIRVA, as defined in the Table; denies that the vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that his current condition is a sequelae of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on March 5, 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 $15,000.00 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 UNITb:D STATES OURT 01◄ FEDERA CLAIMS OFFICE OF SPECIAL MAST, RS

RAUL DIAZ PARRA , ) ) Petitioner, ) V, ) No . 2 l-564V ) hief Special Master Corcoran SECRETARY OF HEALTI1 AND HUMAN )) ECF SERVICES, ) _____Respondent. ___ ______ )) STfPULATIO The parties hereby stipulate to the follo wing matters: 1. Raul Diaz Parra, peti tioner, filed a petiti on for vaccine compensation under the National Vacc:i ne Injury Compensation Program, 42 .S. '. *300fta-10 to -34 (the "Vaccine Prognun"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of the tetanus, diphtheri a, acellul ar p rtuss is ("Tdap") vacc ine, which vaccine is conta ined in the Vacclnc Injury Table (the ''Table"), 42 C.F.R. § 100.3(a).

2. Petitioner received the Ttlap vaccination in hi left ann on March 13, 2020.

3. The vaccine was administered within the United tates.

4. Petitioner alleges that he suffered a left Shoulder Injury Related to Vaccine /\dmini. tratio n ("S IRVA'') as a result of receiving the Tdap vaccine within the Table time frame, and that he experienced residual effects of this injury for more than six months.

5. Petitioner represents that there has been no prior award or settlement of a civi l actio n for damages on his bchul fas a result of his condition.

6. Respondent denies that petitioner sustained a SIRVA, as defined in the Table; denies that the vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that his eun-cnt condition is a scquelae of a vuccinc-rclatcd 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 an entry or 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 llealth and lluman Services will issue the following compensation payment: A lump sum of $15,000.00, in the fo11n of u 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 pruper unc.1 timely electit)ll lo receive compensation pursuant to 42 U.S.C. § 300aa-2 l (a)( I), and an application, lhc parties will submit to further proceedings before the spccial master to award reasonable attorneys' foes and costs incurred in proceeding upon this petition.

10. Petitioner and his attomcy 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 un<lcr 42 U.S.C. § 300au- 15(g), to the extent that payment has been made or can reasonably be cxpect~d to be made under any Slate compensation programe., insurance policies, Federal or

State hculth benefits programs (other than Title X!X 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 pursuanl to paragraph 9 of this Stipulation, wi ll 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 Llrnl, except for any award for attorneys' fees and litigation costs, and past unrcimbursnble expenses, the money prnvided pursuant LC> this Stipulation will be used solely for the benefit of petitioner, as contemplated by a strict construction or 42 U.S.C. ~ 300aa- l 5(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa-l 5(g) nnd (h).

13. ln return for the payments described in paragraphs 8 and 9, petitioner, in his individual capacity and on behalf of his heirs, executors, adminislralors, successors or assigns, does forever irrevocably and unconditionally release, acquit un<l discharge the United States and the Secretary of Health and Human Services from any and all actions, causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of wb;itever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under lhe National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa IO ct seq., on account of, or in any way growing out of, any und all known or unknown, suspected or unsuspected personal injuries to or death of petitioner rcsulLing from, or alleged to have resulted from, the Tdap vaccine administered on or about March 13, 2020, as alleged by petitioner in a petition for vaccine compc11sation filed on January l l, 202 l , in the United Stales Court of foderal Claims as petition No. 21 -564 V.

3 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 pm1ies.

l S. If the special master fails to issue a decision in complete eonfonnity with the terms of this Stipulation or if the Court of federal Claims fails to enter judgment in conformity with n decision that is in complete conformity with the terms of this Stipulation, then the parties' sclllemcnt and this Stipulation shall be voidable at the sole discretion of either party, 16. This Stipulation expresses a full and complete m)gutiatcd sclllcment of liability and damages claimed under the National Childhood Vaccine Injury Act ()f 1986, as amended, except as otherwise noted in paragraph 9 nbove, There is absolutely no agreement on the part of the pa1tics hereto to make any puymcnt or to do any act or thing other than is herein expressly slatc<l and clearly agrce<l to. The panics further agree and understand that the award dcscrihc<l in this stipulation muy reflect a compromise of the parties' respective positions as lo liability nn<l/or amount of damages, an<l 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 Tdap vaccine caused petitioner lo suffer a shoulder injury or his current disabilities, or any other injury or condition, or that petitioner sustained an inju1y contained in the Vaccine Injury Tublc.

18. All rights and obligatil)ns of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

Rcspcctfolly submitted,

ATTORNEY OF RECORD FOR AUTHORIZE}) R<'PRSENTATlVE PETITIONER: OF TH ATTORNEY GENERAL:

/&i,J/t!fo,,.,.~ Ji~ RO ALDC. HOMir~rt3-l/l)(~) 'iJ ~ ~ \ j _e ~ HEATHER L. PEARLMAN Conway Homer, P.C. Deputy Director Shawmut Street Torts Branch Boston, MA 02116 Civil Divi ion (617) 695-1990 U.S. Department of Justice E-mail: jpeµ[email protected] P.O. ox 146 Benjamin Frankli n Station Washington, DC 20044-0 146

AUTHORJZltD REPRESENT A Tl VE ATTORNEY O RECORD FOR OF Tlm SECRETARY OF HF.AL TH RESPONDENT: AND HUMAN SERVICES: Dlgllally lgned by Jeffrey S. Jeffrey S. Beach -S Date: 2024.02 .22 Beach -5 10:10:se .os·oo· for CDR JG,ORGE REED GRIM :;S, MD MPH ®{j~Rl~~ Director, Division of Injury Trial Atlt)mey Compensation Programs Torts 13ranch lkulth Systems Bureau Civ il Division Health Resources and Services U.S. Department of J\lsticc Administration P. . Box 146 U.S. Department of Health Benjamin Franklin tation and Human Services Washington, DC 20044-0 146 5600 Fishers Lane, 08W-25A Tel: (202) 305-4117 Roc..:kville, MD 20857 E-mail: Bddget. oJTidnn@usdoj .gov

Dated: .1.J_b.,._ 2--+---- -