Sn the Guited States Court of Federal Clanns
OFFICE OF SPECIAL MASTERS
No. 18-1977V
Filed: January 25, 2022
UNPUBLISHED
MICHAEL MEZZACAPO,
Petitioner, ;
Vv Joint Stipulation on Damages;
Influenza (“Flu”) vaccine; Tetanus,
SECRETARY OF HEALTH AND diphtheria, acellular pertussis
HUMAN SERVICES (“Tdap”) vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SSIRVA")
Leah Durant, Law Offices of Leah V. Durant, PLLC, Washington, D.C., for petitioner.
Voris E. Johnson, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION"
On December 27, 2018, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,* (the
“Vaccine Act”). Petitioner alleges that he suffered a right Shoulder Injury Related to
Vaccine Administration (“SIRVA’). Petition at 1; Stipulation, filed January 25, 2022, at J
4. Petitioner further alleges that he has experienced the residual effects of his condition
for more than six months, that there has been no prior award or settlement of a civil
action for damages as a result of his condition, and that his vaccines were administered
in the United States. Petition at 2; Stipulation at Jf] 3-5. “Respondent denies that
petitioner sustained a Table SIRVA within the Table timeframe, and denies that the
Tdap vaccine and/or flu vaccine in fact caused his alleged shoulder injury and residual
effects, or any other injury.” Stipulation at {| 6.
Nevertheless, on January 25, 2022, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. | find the stipulation
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted 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).
reasonable and adopt it as the decision of the Court in 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 $50,532.58 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 § 15(a). /d.
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/Daniel T. Horner
Daniel T. Horner
Special Master
? 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
)
MICHAEL MEZZACAPO, )
)
Petitioner, )
) No. 18-1977V (ECF)
Vv. ) Special Master Horner
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Michael Mezzacapo (“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 sustained following
petitioner’s receipt of a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine, which vaccine is
contained in the Vaccine Injury Table (the “Table’’), 42 C.F.R. §100.3(a).
2. Petitioner received Tdap and influenza (“flu”) vaccines on August 29, 2017.
3. The vaccines were administered within the United States.
4, Petitioner alleges that he sustained the first symptom or manifestation of onset of
a right Shoulder Injury Related to Vaccine Administration (“SIRVA”) within the time period set
forth in the Table. Petitioner further alleges that he experienced the residual effects of his
SIRVA 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 Table SIRVA within the Table
timeframe, and denies that the Tdap vaccine and/or flu vaccine in fact caused his alleged
shoulder injury and residual effects, 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 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 $50,532.58 in the form of a check payable to petitioner,
Michael Mezzacapo, which 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 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-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, 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 or assigns,
does forever irrevocably and unconditionally release, acquit and discharge the Secretary of
Health and Human Services and the United States of America 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 and flu vaccines
administered on August 29, 2017, as alleged by petitioner in a petition for vaccine compensation
filed on or about December 27, 2018, in the United States Court of Federal Claims as petition
No. 18-1977V.
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. Ifthe 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 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 of
America or the Secretary of Health and Human Services that petitioner’s alleged right shoulder
injury and residual effects, or any other injury, were caused by the Tdap and/or flu vaccine.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner’s heirs, successors and/or assigns.
END OF STIPULATION
~™~ ™~ ™ ™ ™ O™ ™ ™ ™ S™.
Respectfully submitied.
of
-ACAPO
PETITIONER:
Af:
MICHAEL M
ATTORNEY OF RECORD FOR
PETITIONER:
LEAH V. DURANT
Law Offices of Leah V. Durant. LLC
1717 K Street NW
Suite 900
Washington, DC 20006
(202) 775-9200
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Dab Westhlsr, ONSe, APN), for
CDR GEORGE REED GRIMES, MD, M
Director, Division of Injury
Compensation Programs
Health Systems Bureau
Health Resources and
Services Administration
U.S. Department of Health
_ and Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
: Dated: b} hslzn2
9
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
ae L. as & ‘AN
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:
Vou e ran, 5 .
VORIS E. JOHNSON, JR.
Senior Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel.: (202) 616-4136
Email: voris.johnson@usdoj.gov