Romano v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 24-40V

MICHELE ROMANO, Chief Special Master Corcoran Petitioner, v. Filed: December 30, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jessica E. Choper, Britcher Leone and Sergio, L.L.C., Glen Rock, NJ, for Petitioner.

Benjamin Rex Eisenberg, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On January 11, 2024, Michele Romano filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). On October 18, 2022, Petitioner received an influenza (“flu”) vaccine, which is a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a). Petitioner alleges that she sustained a shoulder injury related to vaccine administration (“SIRVA”) within the Table time frame, or in the alternative that her shoulder injury was caused-in-fact by the flu vaccine. Petitioner further alleges that she suffered the residual effects of her alleged injury for more than six months.

Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access.

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018).

Respondent denies that Petitioner’s alleged SIRVA or its residual effects were caused-in-fact by the flu vaccine; and denies that the flu vaccine caused Petitioner any other injury or Petitioner’s current condition.

Nevertheless, on December 30, 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 $28,150.00 in the form of a check payable to Petitioner.

Stipulation ¶ 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

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.

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

M IC! I ELE ROM/\NO. Petiti oner. v. N o. 24-40V Chief Spec iaI Master Corcoran Sl: CRET/\RY OF 111~/\ LT I I AN D ECF I l lJM/\N Sl~RV ICES.

Respondent.

STI PULAT ION T he parti es hereby stipulate to the fo llowing matters: I . M ichele Romano ('·pet iti oner") fi led a pet ition for vacci m; com pensation under the Nationa l V acc ine Inj ury Compensation Program. 4:2 U.S.C. § 300aa- l O to 34 (the ··vacc ine Program' '). T he petiti on seeks compensation for injuries al legedly related to petitioncr·s rece ipt o !'an in nucnza ("" tlu") vacc ine. which vaccine is contained in the Vacc ine Inj ury T able (the --T able"). 42 C'. F.R. § I 0OJ (a) 2. Petiti oner received a llu vaccine on October 18. 2022.

3. T he vacc ine ,, us adm inistered \\ith in !he United States.

4. Peti tioner alleges that petitioner suffered a shoulder injury related to vaccine adm inistration (" SIRVA .. ) w ithi n the Table time f'rarnc. or in the altern ative that her shoulder injury was caused- in- fact by the f-l u vacc ine. Petitioner fu rther al leges that petitioner sulTercd the residua l effects or the alleged injury fo r more than six months.

5. Petit ioner represents that there has been no pri or award or settlement of a civ il action fo r damages on petitioner' s bchal r as a result of the t1llegcd inj t1ry.

6. Respondent den ies that petitioner"s alleged SIRVA or its residual effects \\ ere caused-in-fact by the flu vaccine: and denies that the flu vaccine caused petitioner any other injury or petitioner's 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 award ing the compensation described in paragraph 8 of this Stipulation.

8. /\s soon as practicable after an entry of judgment rellecting a decision consistent" ith the term s of thi s Stipu lation. and after petitioner has tiled an election to receive compensation pursuant to 42 U.S.C. § 300aa-2 I (a)( I ). the Secretary or I leaIth and l luman Services will issue the fo llowing vacc ine compensati on pay ment for all damages that would be avai lable under 42 U.S.C. § 300aa- I 5{a) : /\ lump sum o r $28, 150.00 in the form or a check payable to petitioner.

9. /\s soon as practicable aner the entry of judgment on entitlement in this case. and after petitioner has filed both a proper and timely election to rece ive compensation pursuant to 42 U.S.C. § J00aa-21 (a)( I). and an application, the parties w ill submit to further proceedings before the special master to award rea sonable attorneys· fees and costs incurred in proceed ing upon thi s petition.

I 0. Petitioner and petitioner·s attorney represent that compensation to be provided pursuant to thi s Stipulation is not for any items or services for w hich the Program is not primari ly 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 program s, insurance po licies.

Federal or State health benefit s programs (other than Title XIX of the Social Security Act (42 U.S.C. § I 396 ct seq.)), or by entities that provide hea lth services on a pre-paid basis.

I I. Payment made pursuant to paragraph 8 and any amoLInls aw arded pursuant lo paragraph 9 o r th is Sti pulation w i ll be made in accordance w ith 42 U.S.C . § 300aa- 15( i). subject to th e avu ilability o r surlic icn t statutory funds.

12. T he parties and their attorneys rurther agree and stipu late that, except for any award for attorney· s fees and Iiti gation costs. and past unreimbursed expenses, the money prov ided pursuant lo this Sti pulation w i ll be used solely for the benefit or petit ioner as contemplated by a strict constructi on or 42 U.S.C . § 300aa- 15(a) and (d), and subject to th e conditi ons or 42 U .S .C.

§ 300au- l 5(g) and (h) .

13. In retu rn fo r the payments described in paragraphs 8 and 9. peti tioner, in peti tioner's indi vidual capacity . and on bclu1 l l' ofpctit ioncr" s he irs. executors, adm in istrators, successors or assigns. docs fo rever irrevocably and uncondit ionally release. acquit and discharge the Uni ted States and th e Secretary or I lcalth and I IL11nan Ser vice s l'rom any and all acti ons or causes of action ( inc luding agrecrncnts. j udgrncnls. c lai ms. damages. loss o r ser vices. ex penses and all demands o f' whatcvcr k ind or nalllrc) that have been brought . could ha ve been brou ght, or could be timely brought in the Court o r Federal Claims. under the National Vacc ine Inj ury Compensation Program . 42 U.S.C . § 300aa• I 0 cl seq., 0 11 account o f, or in any way grow ing out o r: any and all k nown or unknown. suspected or unsuspected personal inj uri es Lo or death o r· petitioner resulting from. or alleged to have rcsLil tcd l'r om. the flL1 vaccination administered on October 18. 2022. as alleged in a petit ion fo r vacc i ne compensation ri led on or about January 11, 2024. in the United Stales Court of Federal C laim s as pet ition N o. 24-40V .

14. I f' petitioner should die prior to entry o f'judgrncnl. th is agreement shall be vo idable upon proper notice to th e Court on behal f" or either or both of the parties.

15. I f tht: spec ial master fai ls 10 issue a decisio11 in complete conformity w ith the terms ot'this Stipulation or if the Court ofTcdcral C lai ms fai ls to enter judgment in conformity w ith a dec ision that is in comp lete conform ity w ith the terms of this Stipulation, then the parti es· se ttlement and th is Stipul ation shall be voidable at the so le d iscreti on of either party.

16. Thi s Sti pulation expresses a f'ull und complete negotiated settlement o r liabil ity and da rn agt:s claimed under the Nati onal Childhood Vacc ine Injury /\c t or 1986. as amended, except as other wise noted in paragraph 9 above. There is abso lutely no agreement on the part or the pa rties hereto to make any payment or to do any act or thi ng other than is herein expressly stated and clearly agreed lo . The pa rti es further agree and understand that the award described in thi s Stipulation may rellcct a compromise o r th e part ies· respective positions as to liabili ty and/or amount o l' damages, and furth er, th at a change in the natu re of the inj ury or condition or in the items or compensati on sought. is 110 1 grounds to mod i fy or rev ise thi s agreement.

17. T hi s Stipul ation shall not be constrned as an admission by the United States or the Secretary or I lea Ith and I luman Services that the flu v,H:c ine caused petitioner's alleged injury or any other injury or peti tioner's ctrrTcnt d isabi lities.

18. /\ II rights unc.1 obl igati ons o f pet itioner hereunder shall apply eq ually to petitioner's heirs. c:xcc utors. administrators. successors. and/or ass igns.

END OF STIPULATION

Respect full y submitted.

PET IT ION ER:

~v?~ M ICH ELE ROMAN O

ATTORNEY OF RECORD FO R /\UTI IORIZED REPRESENT /\TIV E PET IT IO ·R: .- 'I 1 OF THE A TTORNEY G EN ERAL:

17 .-A,l(o,~--4--<~-e ~ HEAT HER L. PEARLMAN Britcher Leone & Sergio. LLC Dq)ltty Director I larristown Road Torts Branch Glen Rock. N J 07452 Civil Division I -444-1644 U.S. Department of Justice j css ica@ blsatLorncys.co111 P.O. Box 146 Benjamin Frank lin Station Washington. DC 20044-0 146 /\ LJTI IOR IZ ED REPR l ·:Sl~NT A TIV C /\ TTORNEY or RlCORD FOR OF T HE SECRETA RY OF HEA LT H RES PON DENT: /\N D I IUM /\N SERV ICl::S: Digitally signed by Jeffrey Jeffrey S. S. Beach •S Bea -S Ch_ _ _ Date: 2024.12.10 09:56:28 _ __ -os·oo· for CPT GEO RG E REED G RIM ES. MD. M PI I ~ E::::G ~ Captain. Division of Inj ury Trial Attorn ey Compensation Program s Torts Brnnch I lea lth Systems Bureau Civi l Div ision Health Resources and Services U.S. Department o f Justice A dmini stration P.O. Box 146 U.S. Department or I lea Ith Benjamin r-rank lin Station and I luman Services Washington, DC 20044-0 146 5600 r-ishcrs Lane. 08N 14613 202-5 14-4074 Rockvi lle, MD 20857 benj arn in .ci scnbcrg@usdoj .gov

Dated: Jl C. ~ J2QL':\