Pecora v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-474V
UNPUBLISHED
ADRIA PECORA Chief Special Master Corcoran
and JOSEPH PECORA, JR.,
as representatives of the ESTATE OF Filed: March 30, 2021
MARYANNE PECORA,
deceased, Special Processing Unit (SPU); Joint
Stipulation on Damages; Influenza
Petitioner, (Flu) Vaccine; Guillain-Barre
v. Syndrome (GBS)
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Danielle Anne Strait, Maglio Christopher & Toale, PA, Seattle, WA, for petitioners.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On April 1, 2019, Adria Pecora and Joseph Pecora, Jr., (“Petitioners”), as personal
representatives of the Estate of Maryanne Pecora (“Mrs. Pecora”), deceased, filed a
petition for compensation under the National Vaccine Injury Compensation Program, 42
U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioners allege that Mrs. Pecora
suffered Guillain-Barre Syndrome (“GBS”) as a result of an influenza (“flu”) vaccine
administered on October 8, 2017. Petition at 1-2; Stipulation, filed on March 30, 2021, at
¶¶ 1-2, 4. Petitioners further allege that the vaccine was administered within the United
States; that Mrs. Pecora’s condition lasted more than six months and that her death was
the sequela of her alleged vaccine-related injury; and that there has been no prior award
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
or settlement of a civil action for damages on behalf of Mrs. Pecora as a result of her
alleged condition or her death. Petition at 1, 4-5; Stipulation at ¶¶ 3-5. “Respondent denies
that the flu vaccine caused Mrs. Pecora’s alleged GBS, any other injury, or her death.”
Stipulation at ¶ 6.
Nevertheless, on March 30, 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 $280,447.00 in the form of a check payable to Petitioners as
legal representatives of the Estate of Maryanne Pecora. Stipulation at ¶ 8. This
amount represents compensation for all items of damages that would be available
under Section 15(a).
I approve the requested amount for Petitioners’ 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 ST ATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
ADRIA PECORA and JOSEPH )
PECORA, JR., as representatives of )
the ESTA TE OF MARY ANNE )
PECORA, deceased, )
)
Petitioner, )
) No. 19-474V
V. ) Chief Special Master Corcoran
) (ECF)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
STJPULA T1ON
The parties hereby stipulate to the following matters:
I. Adria Pecora and Joseph Pecora, Jr. ("petitioners"), as personal representatives of the
estate of Maryanne Pecora ("Mrs. Pecora"), deceased, 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 and death allegedly related to
Mrs. Pecora's receipt of an influenza ("flu") vaccine, which vaccine is contained in the Vaccine
Injury Table (the "Table"), 42 C.F.R. § 100.3(a).
2. Mrs . Pecora received the flu vaccine on October 8, 2017.
3. The vaccine was administered within the United States.
4. Petitioners allege that as a result of receiving the flu vaccine, Mrs . Pecora suffered
Guillain-Barre Syndrome ("GBS"). Mrs. Pecora passed away on December 27, 2017.
Petitioners further allege that Mrs. Pecora's death was the sequela of her alleged vaccine-related
injury.
5. Petitioners represent that there has been no prior award or settlement of a civil action
for damages on behalf of Mrs. Pecora as a result of her alleged condition or her death.
6. Respondent denies that the flu vaccine caused Mrs. Pecora's alleged GBS, any other
injury, or her death.
7. Maintaining their above-slated 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-2l(a)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $280,447.00 in the form of a check payable to petitioners as legal
representatives of the Estate of Maryanne Pecora. 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
petitioners have filed both a proper and timely election to receive compensation pursuant to 42
U.S.C. § 300aa-2l(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.
10. Petitioners and their 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- IS(g), including State compensation programs, insurance policies,
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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, will be made in accordance with 42 U .S.C. § 300aa-15(i), subject to the
availability of sufficient statutory funds.
12. Petitioners represent that they presently are, or within 90 days of the date of
judgment wiU become, duly authorized to serve as the legal representatives of the Estate of
Maryanne Pecora under the laws of the State of New Jersey. No payments pursuant to this
Stipulation shall be made until petitioners provide the Secretary with documentation establishing
their appointment as the legal representatives of the Estate of Maryanne Pecora. If petitioners
are not authorized by a court of competent jurisdiction to serve as the legal representatives of the
Estate of Maryanne Pecora at the time a payment pursuant to this Stipulation is to be made, any
such payment shall be paid to the party or parties appointed by a court of competent jurisdiction
to serve as the legal representatives of the Estate of Maryanne Pecora upon submission of written
documentation of such appointment to the Secretary.
13. In return for the payments described in paragraph 8, and any amount awarded
pursuant to paragraph 9, petitioners, in their individua I capacities, and as the Personal
Representatives of the Estate of Maryanne Pecora, on behalf of Mrs . Pecora ' s heirs, executors,
administrators, successors or assigns, do 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
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Vaccine Injury Compensation Program, 42 U.S.C. § 300 aa-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 Mrs. Pecora resulting from, or alleged to have resulted from, the flu vaccine
administered on October 8, 2017, as alleged in a Petition filed on April I, 2019, in the United
States Court of Federal Claims as petition No. 19-474V.
14. If the special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the United States 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.
15. This Stipulation expresses a full and complete negotiated settlement of liability and
damages claimed under the National Childhood Vaccine Injury Act of I986, as amended. There
is absolutely no agreement on the pait of the patties hereto to make any payment or 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 rellect a compromise of the parties'
respective positions as to liability and/or amount of damages.
16. 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 Mrs. Pecora's alleged GBS
or any other i1~ury or her death.
17. All rights and obligations ofpetitioncrs in their capacities as the Personal
Representatives of the Estate of Maryanne Pecora shall apply equally to petitioners' heirs,
executors, administrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully submitted,
PETITIONERS:
ADRIA PECORA
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONERS: OF THE ATTORNEY GENERAL:
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HEATHER PEARLMAN
Maglio, Christopher & Toale, PA Acting Deputy Director
1325 Fourth Ave., Suite 1730 Torts Branch
Seattle, Washington 9810 I Civil Division
Tel: (888) 952-5242 U.S. Department of Justice
Email: dstrait@mctlawyers.com P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH AND RESPONDENT:
1-IDMAN SERVICES:
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TAMARA OVERBY CLAUDIA B. GANGI
Acting Director, Division oflnjury Senior Trial Attorney
Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
Health Resources and Services Administration U.S. Department of Justice
U.S. Department of Health and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 08Nl468 Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-4138
Emai I: claudia.gangi@usdoj.gov
Dated: 0~ t''16 /z O'L /
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