Vucenic v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1824V
UNPUBLISHED
MICHAEL DEAN VUCENIC, Chief Special Master Corcoran
Petitioner, Filed: January 10, 2022
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.
Althea Walker Davis, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On November 27, 2019, Michael Dean Vucenic 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 he suffered left shoulder injuries related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine received on
November 13, 2017. Petition at 1; Stipulation, filed January 10, 2022, at ¶¶ 2-4. Petitioner
further alleges the vaccine was administered in the United States, he experienced
residual effects of his injury for more than six months, and there has been no prior award
or settlement of a civil action for damages as a result of his condition. Petition at 1, ¶¶ 51-
53; Stipulation at ¶¶ 3-5. Respondent denies that petitioner’s alleged left shoulder injury
or any other injury or condition was caused by his receipt of the flu vaccine, and further
denies that petitioner 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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
Nevertheless, on January 10, 2022, 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 $60,000.00 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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MICHAEL DEAN VUCENIC, )
)
)
Petitioner,
) No. 19-1824V
v.
) Chief Special Master Corcoran
SECRETARY OF HEALTH AND HUMAN )) ECF
SERVICES, )
______________
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
l. Michael Dean Vucenic, 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 the influenza vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"),
42 C.F.R. § 100.3(a).
2. Petitioner received the influenza vaccination in his left arm on November 13, 2017.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he suffered a Shoulder Injury Related to Vaccine
Administration ("SIRVA'') as a result of receiving the influenza vaccine, within the Table time
frame, and that he experienced residual effects of this injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on his behalf as a result of his condition.
6. Respondent denies that petitioner's alleged left shoulder injury or any other injury or
condition was caused by his receipt of the flu vaccine, and further 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 ofjudgment reflecting a decision consistent with
the terms of this:Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 lJ..S.C. § 300aa-2 l(a)(l ), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump:sum of$60,000.00 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-l 5(a).
9. As soon as practicable after the entry ofjudgment 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-2 l (a)( I), 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-l S(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 ben~fits 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.
2
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-
l S(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 constructiqn of 42 U.S.C. § 300aa-l 5(a) and (d}, and subject to the conditions of 42 U.S.C.
§§ 300aa-1 S(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in his
individual capac_ity and on behalf of his 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, 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 influenza vaccine administered on or about November 13,
2017, as alleged by petitioner in a petition for vaccine compensation filed on November 27,
2019, in the Uni~ed States Court of Federal Claims as petition No. 19-l 824V.
14. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
3
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, as amended, except
as otherwise not~d 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 agreyd 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 influenza vaccine caused petitioner to suffer a
shoulder injury or his current disabilities, or any other injury or condition, or that petitioner
sustained an injury contained in the Vaccine Injury Table.
18. All r.ights 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,
PETITIONER:
ATIORNEYOFRECORDFOR AUTHORIZED REPRSENTATIVE
PETITIONER: OF THE ATI'ORNEY GENERAL:
J~
' ..M.e~ ':sill~
HEATHER L. PEARLMAN
Jeffiey S. Pop & Associates Deputy Director
91SO Wilshire Blvd., Suite 241 Torts Branch
Beverly Hills, CA 90212 Civil Division
(310) 273-S462 U.S. Department of Justice
(310)274-7749 Fax P.O. Box 146
jpop@poplawyer.com Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATl'ORNEYOFRECORDFOR
OJl'TBE SECRETARY OF HEALTH RESPONDENT:
AND BUMAN SERVICES:
A1~W``~
[:)ail, ~ I `` .<1/JRAJ, ~ ~ ~ L.-V~
CDR GEORGE REED GRIMES, MD, MPH ALTHEA WALKER DAVIS
Director, Division of Injury Senior Trial Counsel
Compensation Programs Torts Branch, Civil Division
Health Systems Bureau U.S. Department of Justice
Health Resources and Services P.O. Box 146
Administration Benjamin Franklin Station
U.S. Depanment of Health Washington, DC 20044-0146
and Human Services Tel: (202) 616-0S IS
5600 Fishers Lane, 08N l 46B Althea.Davis@usdoj.gov
Rockvil~e, MD 20857
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Dated: 01 fc? /ttrz_.?_
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