Theriault v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 24-1421V

JONATHAN THERIAULT, Chief Special Master Corcoran Petitioner, Filed: April 9, 2026 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.

Michael Bliley, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION1 On September 11, 2024, Jonathan Theriault 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”) or, alternatively, brachial plexus nerve injury, resulting from a tetanus diphtheria acellular pertussis (“Tdap”) vaccine received on January 18, 2022.

Petition at 1; Stipulation, filed April 9, 2026, at ¶¶ 2-4. Petitioner further alleges that the vaccine was administered in the United States, the adverse effects of his injury have lasted longer than six months, and there has been no prior award or settlement of a civil action for damages on his behalf as a result of his condition. Petition at ¶¶ 9, 43, 44; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner suffered a SIRVA Table injury; denies that the Tdap vaccine caused petitioner’s alleged SIRVA, left brachial plexus nerve injury, or any other injury; and denies that petitioner’s current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6.

Nevertheless, on April 9, 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. A lump sum of $25,500.00, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner and b. A lump sum of $76.44, representing compensation for satisfaction of a Medi-Cal lien, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to: Department of Health Care Services Personal Injury Program, MS 4720 P.O. Box 997421 Sacramento, CA 95899 Stipulation at ¶ 8. These amounts represent 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

JONATHAN THERIAU LT, Petitioner, V. No. 24- 142 1V Chief Special Master Corcoran SECRETARY OF HEALTH /\ND ECF HUMAN SERVICES, Respondent.

STIPULATION The parties hereby stipu late to the fo llowing matters: 1. .Jonathan Theriault ("petitioner") fil ed a petition for vacci11e compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa- l Oto 34 (the "Vaccine Program"). The petition seeks compensation fo r injuries allegedly related to petitioner's rece ipt of a tetanus, diphtheria, and acellular pertussis ("Tdap") vaccine, which is conta ined in the Vaccine Injury Table (the "Table"), 42 C.F.R. § I 00.3(a).

2. Petitioner received a Tdap vaccination on January I 8, 2022, 3. The Tdap vaccine was administered within the United States.

4. Petitioner alleges that he sustained a Table shoulder injury related to vaccine administration ("SIRVA") within the time period set forth in the Table fo llowing adm inistration of the vaccine. In the alternative, petitioner alleges that the Tdap vaccine caused-in-fact his SIRVA, and/or a left brachia! plexus nerve injury. Petitloncr further alleges that he experienced the residual effects of these conditions fo r more than six months.

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

6. Respondent denies that petitioner sustained a SfRVA Table injury; denies Lhal Lhe Tdap vaccine caused petitioner' s alleged SIRVA, left brachia! plexus nerve injury, or any other injury; and denies that petitioner' s current condition is a sequela of a vacc ine-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 thi s Stipulation.

8. As soon as practicable after an entry of judgment refl ecting 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 1(a)( I), the Secretary of Hea lth and Human Services wi ll issue the fo llowing vaccine compensation payments: a. A lump sum of $25,500.00 to be paid through an ACH deposit to petitioner's counsel' s IOL TA account for prompt disbursement to petitioner.

b. A lump sum of $76.44, 1 representing compensation fo r satisfaction of a Medi-Cal lien, to be paid through an ACH deposit to petitioner's counsel's IOLTA account for prnmpt disbursement to: Department of I lea Ith Care Services Personal Injury Program, MS 4720 P.O. Box 99742 1 Sacramento, CA 95899 These amounts represent compensation for all damages that would be available tmder 42 U.S.C. § 300aa- I 5(a).

The amount set forth in paragraphs 8.b. of this Stipulation represents full satisfaction of any right of subrngation, assignment, claim, lien, or cause of action the State of Ca lifo rnia may have against any individual as a result of any Medicaid payments the State of California has made to or on behalf of petitioner as a result of petitioner's alleged injury relating to a vaccine administered on or about January 18, 2022, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa- 15(g), (h).

9. As soon as practicable after the entry of judgment on entitlement in thi s case, and after petitioner has fil ed both a proper and timely election to receive compensation pursuant to U.S.C. § 300aa-2 I(a)( I), and an application, the parties wil l submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceed ing upon this petition.

I0. Petitioner and his 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 prov ide health services on a pre-paid basis.

I I. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation wi ll be made in accordance with 42 U.S.C. § 300aa-l5(i), subj ect 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 unreimbursablc expenses, the money provided pursuant to this Stipulation wil l be used so lely for the benefit of petitioner as contemplated by a strict constructio11 of 42 U.S.C. § 300aa-l S(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa- l5(g) and (h).

13. In return for the payments described in paragraphs 8 and 9, petitioner, in petitioner's individual capacity, and on behalf of petitioner's heirs, executors, adm inistrators, successors or assigns, does forever irrevocably and unconditiona lly release, acqt1 it and discharge the United States and the Secretary of Hea lth and Human Serv ices from any and all actions or causes of action (includ ing agreements, j udgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or cou ld 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 petitioner resulting from, or alleged to have resulted from, the Tdap vacc ination administered on January 18, 2022, as alleged in a petition fo r vacc ine compensation fil ed on or about September I, 2024, in the United States Court of Federal Claims as petition No. 24- 142 1V.

14. If petitioner shouId 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 parties.

15. If the special master fails to issue a decis ion in complete confo rmity with the terms of this Stipulation or if the Court of r ederal Claims fail s to enter judgment in conformity with a decision that is in complete conformity with the terms of th is Sti pulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party.

16. This Stipu lation expresses a ful l and complete negotiated settlement of liability and damages claimed under the National Ch ildhood 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 descri bed in this Stipulation may reflect a compromise of the parties' respective positions as to liabi lity and/or amount of damages, and fu rther, that a change in the natL1re of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement.

17. Thi s Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Huinan Services that the Tdap vaccine caused petitioner" s alleged shoulder injury or any other injLiry or petitioner's current condition, or that petitioner suffered an injury contained in the Vaccine Injury Table.

18. All rights and obligations of petitioner hereunder shall apply eqL1ally to petitioner's heirs, executors, administrators, successors, and/or assigns.

END or STIPULATION

Respectfully submitted,

PETITIONER:

~ 10ATHANTHEmUU ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL:

~~\L, P t . ~ JE~ UIRE HEATHER L. PEA RLMAN Jeffrey S. Pop & Associates Deputy Director 150 WiIshire Blvd., Suite 24 1 Torts Branch Beverly Hills, CA 90212 Civ il Division (3 10) 273-5462 U.S. Department of Justice [email protected] P.O. Box. 146 Benjamin Franklin Station Wash ington, DC 20044-0 146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR O.F THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: George R. Grimes - Dlgltally slgncdby GcorgcR. ~~s~ ~ ~~ L . ~ ' - ~ Grimes·S16 S16 Date: 2026.03.19 15:S 1:24 -04'00'

CAPT GEORGE REED GRIM ES, MO, MP H MICHAELS. BULEY Director Trial Attorney Division of Injury Compensation Programs Torts Branch Health Systems Bureau Civ il Division Hea lth Resource and Services Adm inistration U.S. Department of Justice U.S. Department of Health and Human Services P.O. Box. 146 5600 Fishers Lane, 14 W- I8 Benjamin Franklin Station Rockville, MD 20857 Wash ington, DC 20044-0 146 (202) 6 16-4357 Michael.BI ilcy@usdo j.gov