Cantafio v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0948V
JAMES CANTAFIO, Chief Special Master Corcoran
Petitioner, Filed: November 15, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On February 19, 2021, James Cantafio 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”) resulting from a pneumococcal conjugate vaccine received on
January 22, 2020. Petition at 1; Stipulation, filed November 14, 2023, at ¶¶ 2-4. Petitioner
further alleges that the vaccine was administered in the United States, he experienced
the residual effects of his condition 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
¶¶ 2, 20-22; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a Table
SIRVA; denies that the vaccine caused petitioner’s alleged shoulder injury, or any other
injury; and denies that his current condition is a sequela of a vaccine-related injury.”
Stipulation at ¶ 6.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (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 (2018).
Nevertheless, on November 14, 2023, 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 $20,000.00 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 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 STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
JAMES CANTAFIO,
Petitioner, No. 21-948V
Chief Special Master Corcoran
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. On February 19, 2021, James Cantafio (“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 injuries allegedly related to
petitioner’s receipt of a pneumococcal conjugate PCV13 (“pneumococcal”) vaccine, which
vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).
2. Petitioner received the pneumococcal vaccine on January 22, 2020.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he suffered from a shoulder injury related to vaccine
administration (“SIRVA”) as a result of receiving the pneumococcal vaccine. Petitioner 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 condition.
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6. Respondent denies that petitioner sustained a Table SIRVA injury; denies that the
vaccine caused petitioner’s alleged shoulder injury, or any other injury; and denies that his
current condition is a sequela 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 $20,000.00 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-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 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-15(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 benefits 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.
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11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 9 of this Stipulation 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 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 payment described in paragraphs 8 and 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. § 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 petitioner resulting
from, or alleged to have resulted from the pneumococcal vaccination administered on January
22, 2020, as alleged by petitioner in a petition for vaccine compensation filed on or about
February 19, 2021, in the United States Court of Federal Claims as petition No. 21-948V.
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.
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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 noted 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 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 petitioner sustained a SIRVA Table injury; that the
pneumococcal vaccine caused any other injury; or that his current condition is a sequela of a
vaccine-related 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,
PETITIONER:
~AFW
ATIORNEYOFRECORDFOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATIORNEY GENERAL:
~at!L. r(oMJt b e
C,b\l.fl(( G~ r<uie 83.\(cXz) '4AgcW-,.µ \<t..P~
RONALD C. OMER HEATHER L. PEARLMAN
Conway, Homer, P.C. Deputy Director
16 Shawmut Street Torts Branch
Boston, MA 02116 Civil Division
Tel: (617) 695-1990 U.S. Department of Justice
rhomer@ccandh.com P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUfflORIZED REPRESENTATIVE ATIORNEYOFRECORDFOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
Henry P•
by Mcmillan -ss =
Ofgttally signed bv Hemy P.
Mcmllln•SS
023 10311 7 3
CDR GEORGE REED GRIMES, MD, MPH
• 2:S :3
Director, Division of Injury ey
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. Department of Health Washlngton, DC 20044--0146
and Human Services Tel: (202) 616-5022
5600 Fishers Lane, 08W-25A Mary.E.Holmes@usdoj.gov
Rockville, MD 20857
Dated: l \ • r ll • 2. 0 2 ~
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