Di Mascolo v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2274V

MARIE CELESTE DI MASCOLO, as Chief Special Master Corcoran administrator and legal representative of the estate of ELIZABETH GOMBEYSKI, deceased, Filed: March 5, 2026 Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner.

Dorian Hurley, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1 On December 9, 2021, Elizabeth Gombeyski filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Following Ms. Gombeyski’s passing, Petitioner was substituted in, as administrator and legal representative of the estate of Ms. Gombeyski, on December 19, 2024. ECF No. 44. On October 6, 2020, Ms. Gombeyski received an influenza (“flu”) vaccine, a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a). Petitioner alleges that Ms. Gombeyski suffered from Guillain-Barré syndrome (“GBS”) as defined in the Table; she further alleges that the flu vaccine caused Ms. Gombeyski’s alleged injury, and 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 Ms. Gombeyski sustained a GBS Table injury; denies that Ms. Gombeyski’s alleged GBS or its residual effects were caused-in-fact by the flu vaccine; and denies that the flu vaccine caused Ms. Gombeyski any other injury or her death.

Nevertheless, on March 5, 2026, 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 $115,000.00 to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement 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 } MARIE CELESTE DI MASCOLO, as } administrator and legal representative ofthe } estate o/ELIZABETH GOMBEYSKI, } deceased, ) No. 2l-2274V ) Chief Special Master Corcoran Petitioner, ) ECF ) V. ) ) SECRETARY OF HEALTH AND HUMAN ) SERVICES, } ) Respondent. ) _____ _______ ____ _ } STIPULATION The parties hereby stipulate to the following matters: 1. Elizabeth Gombeyski ("decedent") filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the "Vaccine Program"), and Marie Celeste Di Mascolo {"petitioner"), as administrator and legal representative of the estate of decedent, was substituted in as petitioner following decedent's death. The petition seeks compensation for injuries allegedly related to decedent's receipt of an influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the ..Table"), 42 C.F.R. § 100.3 (a).

2. Decedent received the flu vaccine on or about October 6, 2020.

3. The vaccination was administered within the United States.

4. Petitioner alleges that decedent suffered a Table Injury of Guillain Barre Syndrome ("GBS") that was caused by the October 6, 2020 flu vaccine. Petitioner further alleges that

RSlgn Envelope IO: ENV78588624•5233·MCE-3691·8FEE 02/28/2026 14:34 PM UTC decedent experienced the residual effe.cts of this condition for more than six months. Petitioner does not allege that October 6, 2020 flu vaccine caused decedent's death on May 15, 2024.

5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on decedent's behalf as a result of decedent's condition or death.

6. Respondent denies that decedent sustained a GBS Table Injury; denies that decedent's alleged GBS or its residual effects were caused-in-fact by the flu vaccine; and denies that the flu vaccine caused decedent any other injury or decedent's death.

7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shalJ 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 of this 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 An amount of $115,000.00 to be paid through an ACH deposit to petitioner's counsel's IOLTA account for prompt disbursement to petitioner as legal representative of decedent's estate.

This amount represents 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-21 (a)( 1), and an application, the parties wilt submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition.

RSign Envelope 10: ENV78588824-5233-AACE·3691-BFEE 02/26/2028 14:34 PM UTC 10. Petitioner and petitioner's 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 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 and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-l 5(i), subject to the availability of sufficient statutory funds.

12. Petitioner represents that petitioner presently is, or within 90 days of the date of judgment will become, duly authorized to serve as the legal representative of decedent's estate under the laws of the State of Rhode Island. No payments pursuant to this Stipulation shall be made until petitioner provides the Secretary with documentation establishing petitioner's appointment as legal representative of decedent's estate. If petitioner is not authorized by a court of competent jurisdiction to serve as legal representative of decedent's estate at the time a payment pursuant to this Stipulation is to be made, any such payment shall be paid to the party or parties appointed by a court of competent jurisdiction to serve as legal representative of decedent's estate upon submission of written documentation of such appointment to the Secretary.

13. In return for the payments described in paragraphs 8 and 9, petitioner, in petitioner's individual capacity and as administrator and legal representative of the estate of decedent, on petitioner's own behalf, and on behalf of decedent's heirs, executors, administrators, successors, or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United

RSlgn Envelope ID: ENV7858e824-5233-MCE•3691-8FEE 02/26/2026 14:34 PM UTC 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-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 of decedent resulting from, or alleged to have resulted from, the flu vaccination administered on or about October 6, 2020, as alleged in a petition for vaccine compensation filed on or about December 9, 2021, in the United States Court of Federal Claims as petition No. 21-2274V.

14. If the special master fails to issue a decision in complete conformity with the tenns 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 tbis Stipulation shall be voidable at the sole discretion of either party.

15. 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 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 amount 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.

RSlgn Envelope ID: ENV73588624-5233-AACE-3691·BFEE 02/2612026 14 34 PM UTC 16. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the flu vaccine caused decedent's alleged injury, or any other injury or decedent's death.

17. All rights and obligations of petitioner hereunder in petitioner's capacity as administrator and legal representative of decedent's estate shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

RSlg\ Envelope ID: ENV78588624-5233·MCE-3891-BfEE 02/26/2026 14:34 PM UTC PETITIONER:

MARIE CELESTE DIMASCOLO

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: C_ ~ , OF THE ATTORNEY GENERAL: ~ -) ~~~£~~ JONATHAN J. SVITAK HEATHER L. PEARLMAN Shannon Law Groupt P.C. Deputy Director 6825 Hobson Valley Drive, Suite 101 Torts Branch Woodridge, Illinois 60517 Civil Division Phone: (312) 578-9501 U.S. Department of Justice Email: [email protected] P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Jeffreys. Dlgitallyslgnedby Jeffrey s. Beach •S Beach S ____-__ Date:2026.02.18 10:41:23-0S'OO' CAPT GEORGE REED GRJMES, MD, MPH for Otuk ~ DORIAN HURL EY~ 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, DC 20044-0146 5600 Fishers Lane, 14W-18 Phone: (202) 353-7751 Rockvillet MD 20857 Email: [email protected]

Dated: d/s/t.azw

RSl!}n Enve~ IO: ENV78588624•5233-MCE-3691·BFEE 02/2612026 14:34 PM UTC