Cestaro v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: April 4, 2018
* * * * * * * * * * * * * * * * * * * UNPUBLISHED
ALBERT CESTARO, *
* No. 16-1601V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Joint Stipulation; Influenza (“Flu”)
AND HUMAN SERVICES, * Vaccination; Shoulder Injury.
*
Respondent. *
* * * * * * * * * * * * * * * * * * *
James B. Blumenstiel, Powell, OH, for petitioner.
Camille C. Collett, United States Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On December 2, 2016, Albert Cestaro (“petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 Petitioner received an
influenza (“flu”) vaccination on or about October 5, 2015. Petitioner alleged that this flu
vaccination caused him to develop a shoulder injury and that he experienced the residual effects
of this condition for more than six months.
On April 4, 2018, respondent filed a joint stipulation providing that a decision should be
entered awarded compensation to petitioner. Joint Stipulation (ECF No. 48). Respondent denies
that the flu vaccination is the cause of petitioner’s alleged shoulder injury, or any other injury or
condition. Id. at ¶ 6. Maintaining their respective positions, the parties nevertheless now agree
that the issues between them shall be settled and that a decision should be entered awarding
1
Because this decision contains a reasoned explanation for the action in this case, the undersigned intends to post it
on the website of the United States Court of Federal Claims, pursuant to the E-Government Act of 2002, see 44
U.S.C. § 3501 note (2012). The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the
decision is posted on the court’s website, each party has 14 days to file a motion requesting redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is
privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). “An objecting party must provide the
court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14
days, the decision will be posted on the court’s website. Id.2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
compensation to petitioner according to the terms of the joint stipulation attached hereto as
Appendix A.
The joint stipulation awards a lump sum of $15,000.00 in the form of a check
payable to petitioner. This amount represents all damages that would be available under 42
U.S.C. § 300aa-15(a).
I find the stipulation reasonable and I adopt it as the decision of the Court in awarding
damages, on the terms set forth therein. Accordingly, the Clerk of the Court SHALL ENTER
JUDGMENT in accordance with the terms of the parties’ stipulation.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties jointly or separately filing notice
renouncing their right to seek review.
2