Ruzzene v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1658V
UNPUBLISHED
CECILIA RUZZENE, Chief Special Master Corcoran
Petitioner, Filed: January 30, 2020
v.
SECRETARY OF HEALTH AND Special Processing Unit (SPU); Joint
HUMAN SERVICES, Stipulation on Damages; Influenza
(Flu) Vaccine; Shoulder Injury
Respondent. Related to Vaccine Administration
(SIRVA)
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.
Julia Marter Collison, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On October 26, 2018, Cecilia Ruzzene 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”) which meets the definition of a Table SIRVA and was caused-
in-fact by the influenza vaccine she received on October 19, 2017. Petition at ¶¶ 4, 23-
24; Stipulation, filed Jan. 30, 2020 at ¶¶ 1-2, 4. Petitioner further alleges that she
received the influenza vaccination in the Unites States, that she suffered the residual
effects of her SIRVA for more than six months and that neither she nor any other party
has filed a civil action or received an award for her SIRVA, alleged as vaccine caused.
Petition at ¶¶ 4, 25-27; Stipulation at ¶¶ 3-6. “Respondent denies that petitioner
sustained a SIRVA Table injury and denies that the flu vaccine caused petitioner’s
alleged shoulder injury or her current condition.” 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
2National 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).
Nevertheless, on January 30, 2020, 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 $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 § 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
CECILIA RUZZENE,
Petitioner,
V. No. 18-1658V
Chief Special Master Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Cecilia Ruzzene ("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 influez:iza ("flu") vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42
C.F.R. § 100.3(a).
2. Petitioner received the flu vaccine on October 19, 2017.
3. The vaccine was administered in the United States.
4. Petitioner alleges that as a result of receiving the flu vaccine, she suffered a
Shoulder Injury Related to Vaccine Administration ("SIRVA"), and experienced the 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 as a result of her alleged condition.
6. Respondent denies that petitioner sustained a SIRVA Table injury, and denies that
l of 5
the flu vaccine caused petitioner's alleged shoulder injury or any other injury or her cun-ent
condition.
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)(l), 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 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 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-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. Petitioner and her 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. § 3 00aa- l 5(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),
2 of5
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 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•l5(a) and (d), and subject to the
conditions of 42 U.S.C. § 300aa•l5(g) and (h).
13. In return for the payments described in paragraph 8, and any amount awarded
pursuant to paragraph 9, petitioner, in her individual capacity, and on behalf of her 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•l0 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 flu vaccine
administered on October 19, 2017, as alleged in a Petition filed on October 26, 2018, in the United
States Court of Federal Claims as petition No. 18·1658V.
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.
3 of5
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 SIRVA,
or any other injury.
18. All rights and obligations of petitioner shall apply equally to petitioner's heirs,
executors, administrators, successors, and/or assigns.
END OF STIPULATION
4 of5
Respectfully submitted,
PETITIONER:
&``
CECILIA RUZZE
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
~ REEVES
Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
TAMARA OVERBY J'.uLIA M. COLLISON
Acting Director, Division of Trial Attorney
Iajury Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 08-N146B Washington, DC 20044-0146
Rockville. MD 20857 (202) 305-0102
Dated: I / 36 /,J.. 0
f(
5 ofS