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

Sn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1680V
UNPUBLISHED
DOMINICK CLEMENTE, Chief Special Master Corcoran
Petitioner, Filed: July 25, 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)
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Julia Marter Collison, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION'
On November 24, 2020, Dominick Clemente filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seg.”
(the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to him on
October 15, 2019. Petition at 1; Stipulation, filed on July 21, 2022, at {§ 2, 4. Petitioner
further alleges that he received the vaccine in the United States, that he experienced the
residual effects of his injury for more than six months, and that there has been no prior
award or settlement of a civil action for damages as a result of his alleged condition.
Petition at 1-2; Stipulation at 9 3-5. “Respondent denies that [P]etitioner sustained a
shoulder injury as defined in the Vaccine Injury Table; denies that the vaccine caused
[P]etitioner’s alleged shoulder injury, or any other injury; and denies that his current
condition is a sequelae of a vaccine-related injury. ” Stipulation at q 6.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, | am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, | agree that the identified material fits within this definition, | 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 July 21, 2022, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. | 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, | award the following
compensation:
A lump sum of $30,000.00 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). /d.
| 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 Court is directed to
enter judgment in accordance with this decision.*®
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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
DOMINICK CLEMENTE,
No. 20-1680V
Petitioner, Chief Special Master Corcoran
v. SPU
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Dominick Clemente (“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 an influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42
C.F.R. § 100.3(a).
2. On October 15, 2019, petitioner received a flu vaccine.
3. The vaccine was administered in the United States.
4. Petitioner alleges that he sustained a shoulder injury related to vaccine
administration (“SIRVA”’) within the time-period set forth in the Table. He further alleges that he
experienced the residual effects of this condition 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 alleged condition.
6. Respondent denies that petitioner sustained a shoulder injury as defined in the
Vaccine Injury Table; denies that the vaccine caused petitioner’s alleged shoulder injury, or any
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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 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 $30,000.00 in the form of a check
payable to petitioner. This lump sum 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 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 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
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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-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 vaccine
administered on October 15, 2019, as alleged in a Petition filed on November 24, 2020, in the
United States Court of Federal Claims as petition No. 20-1680V.
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 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.
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
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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 or his current condition.
18. All rights and obligations of petitioner shall apply equally to petitioner’s heirs,
executors, administrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully submitted,
PETITIONER:
Jy
DOMINICK CLEMENTE
ATTORNEY OF RECORD FOR
PETITIONER:
PAUL Sot
Muller Brazil
715 Twining Road
Suite 208
Dresher, PA 19025
“ (215) 885-1655
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
George R. Grimes diptaiy signed by Geore k
-$14 Dilla: 2022.07.13 14:99:22 0800"
CDR GEORGE REED GRIMES, MD, MPH
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: 07/21/2022.
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AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
2
HEATHER L. PEARLMAN
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:
jut al LLIN
JULIA M. COLLISON
Trial Attomey
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 305-0102
julia.collison@usdoj.gov