Sn the Cnited States Court of Federal Claiung
OFFICE OF SPECIAL MASTERS
No. 17-1117V
Filed: January 5, 2021
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DANIEL H TRIGOBOFF, * UNPUBLISHED
*
Petitioner, * Decision on Joint Stipulation;
* Shoulder Injury Related to
Vv. * Vaccine Administration
* (“SIRVA”); Tetanus-
SECRETARY OF HEALTH * diphtheria-acellular pertussis
AND HUMAN SERVICES, * (“Tdap”) Vaccine
*
Respondent. *
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Robert P. Goodwin, Esq., Walsh Roberts & Grace, Buffalo, NY, for petitioner.
Alexis Babcock, Esq., US Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION!
Roth, Special Master:
On August 21, 2017, Daniel Trigoboff [“Mr. Trigoboff’ or “petitioner” ] filed a petition for
compensation under the National Vaccine Injury Compensation Program.” Petitioner alleges that
he sustained a shoulder injury related to vaccine administration (““SIRVA”) after receiving a
tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination on or about November 16, 2015.
Stipulation, filed Jan. 5, 2021, at {| 1-4. Respondent denies that petitioner sustained a SIRVA
Table injury and denies that the Tdap immunization caused petitioner’s injury. Stipulation at { 6.
Nevertheless, the parties have agreed to settle the case. On January 5, 2021, the parties
filed a joint stipulation agreeing to settle this case and describing the settlement terms.
| Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. /d.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Respondent agrees to issue the following payment:
A lump sum of $38,000.00 in the form of a check payable to petitioner, Daniel
Trigoboff. This amount represents compensation for all damages that would be
available under § 300aa-15(a).
I adopt the parties’ stipulation attached hereto, and award compensation in the amount and
on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance
with this decision.?
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
DANIEL H. TRIGOBOFF, )
)
Petitioner, )
) No. 17-1117V
V. ) | Special Master Mindy Michaels Roth
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Daniel H. Trigoboff, petitioner, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the “Vaccine
Program”). The petition seeks compensation for injuries allegedly related to petitioner’s receipt
of a Tetanus-Diphtheria-Acellular Pertussis (‘Tdap”), which vaccine is contained in the Vaccine
Injury Table (the “Table™), 42 C.F.R. § 100.3(a).
2. Petitioner received a Tdap vaccination on or about November 16, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he sustained a shoulder injury related to vaccine administration
(“SIRVA”) within the time period set forth in the Table. He further alleges that he experienced
the residual effects of this condition for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of his condition.
6. Respondent denies that petitioner sustained a SIRVA Table injury; and denies that his
current condition is a sequelae 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 of 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-21(a)(1), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $38,000.00 in the form of acheck payable 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 of judgment 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 will submit to further proceedings before
the special master to award reasonable attorneys’ fees and costs incurred in proceeding upon this
petition.
10. Petitioner and his attorney represent that they have identified to respondent all
known sources of payment for items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-15(g), including 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 entities that provide health services on a pre-paid basis.
11. Payments made pursuant to paragraph 8 of this Stipulation, and any amount 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 unreimbursable expenses, the money provided
pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a
strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C.
§ 300aa-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in his
individual capacity, and on behalf of his heirs, executors, administrators, successors and/or
assigns, does forever irrevocably and unconditionally release, acquit and discharge the United
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
petitioner resulting from, or alleged to have resulted from, the Tdap vaccination administered on
or about November 16, 2015, as alleged by petitioner in a petition for vaccine compensation filed
on or about August 21, 2017 in the United States Court of Federal Claims as petition No. 17-
LLI7V.
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 parties.
15. If the 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 conformity with a
decision that is in complete conformity with the terms of this Stipulation, then the parties’
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, 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 actor 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.
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’s alleged
shoulder injury, or any other injury or his current condition.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
Respectfully submitted,
PETITIONER:
S deaueglt Leegrt~] (
DANIEL H. TRTIGOBOFF
ATTORNEY OF RECORD FOR
PETITIONER:
by etl’ Lorllun
ROBERT P. GOODWIN, ESQ.
Walsh Roberts & Grace
400 Rand Building
14 Lafayette Square
Buffalo, New York
(716) 856-1636
AeA
14203-1928
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
CHIT Dale Whshler, DNSe, fr
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Healthcare Systems Bureau
U.S. Department of Health
and Human Services
5600 Fishers Lane
Parklawn Building, Mail Stop 08N146B
Rockville. MD 20857
Dated: oilOS zor
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
2 Sta at Oo as JI __
CATHARINE E REEVES
PEATE L PEHEUMAD
Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
MEX) B baloc ock—
LINDAS-RENZT PLeKIS G& BABCOCIL
Senior-Frial Counsel SS SMAST Die oT
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 646-4433 GIG- 7678