Mariani v. Secretary of Health and Human Services

Mn the Guited States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-640V UNPUBLISHED LAURA MARIANI, Chief Special Master Corcoran Petitioner, Filed: December 21, 2020 V. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Influenza HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration Respondent. (SIRVA) Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner. Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION" On April 30, 2019, Laura Mariani filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, ef seq.? (the “Vaccine Act’). Petitioner alleges that she suffered a Table injury, Shoulder Injury Related to Vaccine Administration (“SIRVA’), as a result of her October 14, 2017 influneza (“flu”) vaccination. Petition at 1; see Stipulation, filed at December 21, 2020, Jf] 2, 4. Petitioner further alleges the vaccine was administered within the United States, that she suffered the residual effects of her injury for more than six months, and that there has been no prior award or settlement of a civil action on her behalf as a result of her injury. Stipulation at If] 3-5; see Petition at 7]21-24. “Respondent denies that Petitioner sustained the onset of a SIRVA Table injury within the Table timeframe and further denies that the flu vaccine caused petitioner’s alleged left shoulder injury or any other injury.” Stipulation at J] 6. 1 Because this unpublished decision contains a reasoned explanation for the action in this case, | am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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, | agree that the identified material fits within this definition, | will redact such material from public access. 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). Nevertheless, on December 21, 2020, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. | 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, | award the following compensation: A lump sum of $50,000.00 in the form of a check payable to Petitioner. Stipulation at J 8. This amount represents compensation for all items of damages that would be available under Section 15(a). /d. | 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 the court is directed to enter judgment in accordance with this decision.? ITIS 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. Sn the United States Court of Sederal Claims OFFICE OF SPECIAL MasTERS LAURA MARIANI, | Petitioner, Cade No. 19-640 (ECF) F SPECIAL MASTER Vv. CORCORAN SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. STIPULATION The paxties hereby stipulate to the following matters: 1. Laura Mariani, 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 foy injuries allegedly related to petitioner’s receipt of the influenza (“flu”) vaccine, which Vaccine Injury Table (the “Table”), 42 CFR. § 100.3(a). is a vaccine contained in the 2. Petitioner received the flu vaccine on October 14, 2017. 3. The vaccination was administered within the United States. 4, Petitioner alleges that she sustained a left shoulder injury related to vaccine | administration (“SIRVA”) as a result of receiving the flu \ raccine, and alleges that she experienced the residual effects of this injury for more than six months. 5. Petitioner represents that there has been no por award or settlement of a civil action for damages on ber behalf as a result of her alleged injuries. 6. Respondent denies that petitioner sustained the onset of a SIRVA Table injury within the Table timeframe and further denies that the flu vaccine caused petitioner’s alleged left shoulder injury or any other 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 thik Stipulation. 8, Assoon as practicable after an entry of judgypent 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. § 300a8-21(a){1), the Secretary of Health and Human Services will issue the following vaccine com : ensation payment: A lump sum of $50,000.00 in the form of a check 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 juddment in this case, and after petitioner has filed both a proper and timely election to reqcive 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. i 10. 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 2 or can reasonably be expected to be made under any State compensation programs, insurance policies, Federal or State health benefits programs (other Social Security Act (42 U.S.C. § 1396 et seq.)), or by entiti on a pre-paid basis. 11. awarded pursuant to paragraph 9 of this Stipulation will be 42 U.S.C. § 300aa-15(i), subject to the availability of sufiic 12. any award for attorneys’ fees and litigation costs, and past than Title XIX of the Ls that provide health services Payment made pursuant to paragraph 8 of this Stipulation and any amounts poade in accordance with ient statutory funds. The parties and their attorneys further agree and stipulate that, except for unreimbursed expenses, the money provided pursuant to this Stipulation will be used shlely for the benefit of { petitioner as contemplated by a strict construction of 42 US (C. § 300aa-15(a) and (d), | and subject to the conditions of 42 U.S.C. § 300aa-15(g) ahd (h). 13. Inxreturn for the payments described in paragraphs 8 and 9, petitioner, in | her individual capacity, and on behalf of her heirs, executdrs, administrators, successors or assigns, does forever irrevocably and unconditionally re United States and the Secretary of Health and Human Serv or causes of action (including agreements, judgments, clait expenses and all demands of whatever kind or nature) that been brought, or could be timely brought in the Court of F National Vaccine Injury Compensation Program, 42 U.S.C account of, or in any way growing out of, any and all knov unsuspected personal injuries to or death of petitioner resu 3 lease, acquit, and discharge the ices from any and all actions ms, damages, loss of services, have been brought, could have ederal Claims, under the t. § 300aa-10 et seg., on vn or unknown, suspected or iting froma, or alleged to have resulted from, the flu vaccination administered on October a 2017, as alleged by petitioner in a petition for vaccine compensation filed on of about April 30, 2019, in the United States Court of Federal Claims as petition No. 19-640. 14. If petitioner should die prior to entry of judges, this agreement shall be voidable upon proper notice to the Court on behalf of cthet or both of the parties. 15, Ifthe special master fails to issue a decision fn complete conformity with the terms of this Stipulation or if the Court of Federal Cit 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 Spal 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 amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any pejment 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 Gf 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 flu vaccine caused petitioner’s alleged left shoulder injury or any other injury or her currgnt condition. 4 18. Allxights and obligations of petitioner hereunder shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION Respectfully submitted, PETITIONER: few LAURA MARIANI ATTORNEY OF RECORD FOR PETITIONER: JE . POP Counsel for Petitioner Jeffrey S. Pop & Associates 9150 Wilshire Blvd., Suite 241 Beverly Hills, CA 90212 jpop@poplawyer.com (310) 273-5462 AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES: CHT Date Ubiehlay PWlSo, for 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: 12] kK AUTHORIED REPRESENTATIVE [ti kgni OF THE 'HE ATTORNEY GENERAL: tO CATHARINE E, REEVES Deputy Director Torts Branch, Civil Division. US. Deeg! of Justice P.O. Box Benjamin Franklin Station Washingtoh, DC 20044-0146 ATTONEW OF RECORD FOR RESPONDENT: Mar IC Hetlig by (ota SH _ JE ELLIE Trial Attorhey Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin H ranklin Station Washington, DC 20044-0146 mark. hellie@usdoj.gov (202) 616-4 208