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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0265V
UNPUBLISHED
MARK DEMARTINI, Chief Special Master Corcoran
Petitioner, Filed: November 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)
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On February 21, 2018, Mark DeMartini 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 a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine he received on
December 19, 2016. Petition at Preamble; Stipulation, filed at November 23, 2021, ¶¶ 2-
4. Petitioner further alleges that he suffered the residual effects of this injury for more than
six months. Petition at ¶ 16; Stipulation at ¶ 4. Respondent denies that petitioner
sustained a SIRVA Table injury; denies that the flu vaccine caused petitioner’s alleged
shoulder injury, or any other injury; and denies that his current condition is a sequelae of
a vaccine-related injury.” Stipulation at ¶ 6.
Nevertheless, on November 23, 2021, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. I find the
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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).
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 $40,000.00, 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
)
MARK DEMARTINI, )
)
)
Petitioner, )
) No.18-265V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Res po ode nt. )
STIPULATION
The parties hereby stipulate to the following matters:
1. Mark DeMartini (''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 an injury allegedly related to petitioner's receipt
of the influema ("flu") vaccine, which is contained in the Vaccine Injury Table (the '1'able"), 42
C.F.R. § 100.3(a).
2. Petitioner received the flu vaccine on December 19, 2016. 1
3. The vaccines were administered in the United States.
4. Petitioner alleges that as a resuh of receiving the flu vaccine, he suffered a Shoulder
Injury Related to Vaccine Administration ("SIRVA") within the Table timeframe. He further
alleges that he suffered the residual effects of his alleged injury for more than six months.
1
On December 19, 2016, petitioner also received a pneumococcal polysaccharide vaccine, which
is not contained in the Vaccine Injury Table .
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5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of his alleged condition.
6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu
vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that his
current condition is a sequelae of a vaccine-related 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 descnbed 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 $40,000.00, in the form of a check payable to petitioner, which
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.
10. Petitioner and his 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-15(g), including State compensation programs, insurance policies, Federal or State
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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. Payment 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. 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 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 paragraph 8, and any amount awarded
pursuant to paragraph 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 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-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
vaccinations administered on December 19, 2016, as alleged in a Petition filed on February 21,
2018 and Amended Petition filed on March 23, 2018, in the United States Court of Federal
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Claims as petition No. 18-265V.
14. If petitioner should die prior to entry of judgment, this agreement shall be voidable
upon proper notice of the Court on behalf of either or both of the parties.
15. If the special master fails to issue a decision in complete confonnity with the terms
of this Stipulation or if the United States Court of Federal Claims fails to enter judgment in
confonnity 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 noted in paragraph 9 above. There is absolutely no agreement on the part of the
parties 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 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's alleged shoulder
injury, or any other injury.
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,
ATTORNEYOFRECORDFOR AUfflORIZED REPRESENTATIVE
PET. TIONER: OF fflE ATTORNEY GENERAL:
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loV) Cl.U,!Lu:>4S ~.( c.xr--
HEATHER L. PEARLMAN
Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O.Box 146
Benjamin Franlclin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF fflE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
(Z(Jna.J0a_E, ``
l/~ ~ , ~c-, 4/JM,r ~ v, ~laL>B &JJzak:
TAMARA OVERBY,M.D. RONALDA E. KOSH
Acting Director, Diwion of Injury Trial Attorney
Compensation Programs Torts Branch
Heahh Systems Bureau Civil Division
Heahh Resources and Services U.S. Department of Justice
Administration P.O.Box 146
U.S. Department of Health Benjamin Franklin Station
and Human Services Washington, DC 20044-0146
5600 Fishers Lane, 08N146B ronalda.kosb@usdoj.gov
Rockville, MD 20857 (202) 616-4476
Dated: l l \0-3) ;;}-j
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