Degeorge v. Secretary of Health and Human Services

     In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 18-1815V
                                          UNPUBLISHED


    SUZANNE DEGEORGE,                                           Chief Special Master Corcoran

                         Petitioner,                            Filed: August 24, 2021
    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)


John Richard Taylor, Zaytoun Law Firm, Raleigh, NC, for Petitioner.

Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.


                                DECISION ON JOINT STIPULATION 1

        On November 27, 2018, Suzanne DeGeorge 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 she suffered a Shoulder Injury Related to
Vaccine Administration (SIRVA) as a result of her October 6, 2017 influenza (“flu”)
vaccination. Petition at 1; Stipulation, filed at August 24, 2021, ¶¶ 1-2, 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
¶¶ 3, 5; see Petition at ¶¶ 2, 12-14. “Respondent denies that the flu vaccine caused
[P]etitioner to suffer a left shoulder injury, or any other injury, and denies that [P]etitioner
sustained a SIRVA Table injury.” Stipulation at ¶ 6.



1  Because this unpublished decision contains a reasoned explanation for the action in this case, I am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, I agree that the identified material fits within this definition, I 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 August 24, 2021, 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 $70,000.00 in the form of a check payable 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 the 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.

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                IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                          OFFICE OF SPECIAL MASTERS

                                              )
SUZA         E DEGEORGE,                      )
                                              )
                Petitioner,                   )
                                              )       No. 18-1815V
        V.                                    )       Chief Special Master Corcoran
                                              )       ECF
SECRETARY OF HEALTH AND                       )
HUMAN SERVICES,                               )
                                              )
                Respondent.                   )


                                         STIPULATION

       The parties hereby stipulate to the following matters:

        I. Suzanne DeGeorge, petitioner, filed a petition for vaccine compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l0 to -34 (the "Vaccine

Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt

of an influenza ("flu") vaccine, which is a vaccine contained in the Vaccine Injury Table (the

'·Table"), 42 C.F.R. § 100.3 (a).

       2. Petitioner received the flu vaccine on October 6, 2017.

       3. The vaccination was administered within the United States.

       4. Petitioner alleges that she suffered from a left shoulder injury related to vaccination

administration ("SIRVA") as a result of receiving the flu vaccine.

       5. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on her behalf as a result of her condition.

       6. Respondent denies that the flu vaccine caused petitioner to suffer a left shoulder

injury, or any other injury, and denies that petitioner sustained a SIRVA Table 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)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

        A lump sum of $70,000.00 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 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)(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.

        I 0. 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 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 of this Stipulation 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.



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        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 of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa- l 5(g) and (h).

        13. In return for the payments 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 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-l O 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 flu vaccination administered on October 6, 2017, as

alleged by petitioner in a petition for vaccine compensation filed on or about November 27,

2018, in the United States Court of Federal Claims as petition No. 18-1815V.

        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.



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        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 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.

        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 to have a shoulder

injury, or any other injury or her 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

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Respectfully submitted.

PETITION ~R:




ATTOR~EY OF RECORD FOR                             A UTHORIZED REPRESENTATIVE
PETITIONER:                                        OF THE ATTOR'iE\' Gl<:Nl-:RAL:



.10
Cot 1scl for Petitioner                            Oc puty Director
Zaytoun Ballew & Taylor. l'LLC                     Torts Branch, Civil D1v1s1on
3130 Fairhill DriH:, Suite I 00                    U.S. Departrnt:nt of Justice
Raleigh. NC 27612                                  P.O. I3ox 146
                                                   Benjamin Franklin Station
                                                   Washington, DC 20044-0146

AUTHORIZED REPR1t:s1t:NTATIVE                      A TTOR1''EY OF RECORD FOR
OF THE SECRETARY OF HEALTH                         RESPONDENT:
AJ".iD HUMAN SERVICES:


t>Ale 'P. MWll.tr, t)t-f:Se,, MS, APR.N, for
                                                    f11'Y'cvV1cdo.   lJ Ru1c,u_Jfo
                                                           p,y~CDkk,..L(/~
TAMARA OVERBY                                      AMANOA Y. PASCllJTO
Acting Dire<.:tor, Division of Injury              Trial Attorney
 Compensation Programs                             Torts Branch. Civil Division
Healthcare Systems Hurcau                          U.S. Department of' Justtce
Health Resources and Services                      I' 0 Hox 146
 Administration                                    Bt:nJamm Franklrn Station
U.S. Dt:parlment of Health                         Washington, DC :20044-0146
 and I luman St:rvices                             (202) 616-4847
5600 Fishers Lane, 08N 146B                        amanda y.pasciuto.@usdoj.gov
Rockv1llc, Ml> 20857


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