Pesce v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 24-0363V

SHANNON PESCE, Chief Special Master Corcoran Petitioner, v. Filed: July 31, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Christopher J. Webb, Black McLaren Jones Ryland & Griffee, Memphis, TN, for Petitioner.

Mary Novakovic, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On March 6, 2024, Shannon Pesce 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 November 10, 2022, Petitioner received an influenza (“flu”) vaccine, which vaccine is listed in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).

Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving the flu vaccine. Petitioner further alleges that she experienced the residual effects of this condition for more than six months.

Respondent denies that Petitioner sustained a Table SIRVA injury; denies that the vaccine caused Petitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.

Nevertheless, on July 31, 2025, 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 $35,000.00 to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement 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

SHANNON PESCE, Petitioner, No. 24-363V Chief Special Master Corcoran V. ECF SECRETARY OF HEAL11-1 AND HUMAN SERVICES, Respondent

STIPULATION The parties hereby stipulate to the following matters: I. On March 6, 2024, Shannon Pesce ("petitioner") filed a petition for vaccine compensation under the National Vaccine lnjwy Compensation Program, 42 U.S.C. §300aa-10 to-34 (the "Vaccine Programj. The petition seeks compensation for injuries allegedly related to petitioner's receipt of an influem.a ("flu'') vaccine, which vaccine is contained in the Vaccine Injwy Table (the "Table"), 42 C.F.R. § 100.J(a).

2. Petitioner alleges she received the flu vaccine in her right arm on November 10, 2022. 1 3. The vaccine was administered within the United States.

4. Petitioner alleges that she suffered from a shoulder injury related to vaccine administration ("SIRVA") as a result of receiving the flu vaccine. Petitioner further alleges that she experienced the residual effects of this condition for more than six months.

Petitioner's vaccination administration record reflects that she received the flu vaccination in her left arm.

5. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result ofher condition.

6. Respondent denies that petitioner sustained a Table SIRVA injury; denies that the vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that her 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 an entry ofjudgment reflecting a decision consistent with the terms ofthis Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $35,000.00 to be paid through an ACH deposit to petitioner's counsel's IOLTA account for prompt disbursement to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

9. As 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-2l(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 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 ofthe Social Secwity 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 of42 U.S.C. §300aa-15(a) and (d), and subject to the conditions of42 U.S.C. § 300aa-15(g) and (h).

13. In return for the payment 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 Hwnan Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands ofwhatever 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. § 300 aa-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 ofpetitioner resulting fro~ or alleged to have resulted from the flu vaccination ad.ministered on November 10, 2022, as alleged by petitioner in a petition for vaccine compensation filed on or about March 6, 2024, in the United States Court of Federal Claims as petition No. 24-363V.

14. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both ofthe 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 confonnity with a decision that is in complete conformity with the terms of this Stipulation, then the parties1 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 amend~ 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 amowit 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 petitioner sustained a SIRVA Table injury; that the flu vaccine caused petitioner1 s shoulder injury or any other injury; or that her current condition is a sequela ofa 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 STIPULA110N

RespectfuUy submitted,

S~Qes~ SHANNON PESCE

A1TORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

CHRIS J. WEBB iiiii o.\.HMA~ <CcLk½AA- THERL. P MAN Black McLaren Jones Ryland & Griffee, P .C. Deputy Director Oak Court Drive Torts Branch Suite360 Civil Division Memphis, 1N 38117 U.S. Department ofJustice Tel:(901)762-0535 P.O. Box 146 F.mail: [email protected] Benjamin Franklin Station Washin~ DC 20044-0146

AUTHORIZED REPRESENTATIVE ATrORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: George R. Grimes DfgllllJllgaedbJGmrgaR.

Gdmes·S16 -S16 Dlllt:2025.07.a tOJl6:37 -04'00' CAPT GEORGE REED GRIMES, MD, MPH ~AKOVIC Director, Division of Injury Trial Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justice Health. Resourca . . and Services P.O. Box 146 AdmJDlstratiOll Benjamin Franklin Station U.S. .Depai tment of Health Washington, DC 20044-0146 and Human Services Tel: (202) 616--2879 S600 Fishers Lane. osw..2sA Email: [email protected] RoclcviJte, MD 20857