In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1754V UNPUBLISHED
VICTORIA MARTINEZ, Chief Special Master Corcoran
Petitioner, Filed: December 9, 2021 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Tetanus HUMAN SERVICES, Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Injury Related to Respondent. Vaccine Administration (SIRVA)
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On November 13, 2019, Victoria Martinez 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 Table injury – Shoulder Injury Related to Vaccine Administration (“SIRVA”) – as a result of her March 6, 2018 tetanus diphtheria acellular pertussis (“Tdap”) vaccination. Petition at 1; Stipulation, filed at December 7, 2021, ¶¶ 1-2, 4. Petitioner further alleges the vaccine was administered within the United States, that she suffered the residual effects of her injury for more than six months, and that there has been no prior award or settlement of a civil action on her behalf as a result of her injury. Stipulation at ¶¶ 3-5; see Petition at ¶¶ 1, 18-19. “Respondent denies that [P]etitioner sustained a SIRVA Table injury; denies that the vaccine caused [P]etitioner’s alleged shoulder injuries, or any other injuries; and denies that her condition is a sequelae of a vaccine-related injury.” 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1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Nevertheless, on December 7, 2021, 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 $32,208.00 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
) VICTORIA MARTINEZ. ) ) Petitioner. ) ) No. 19-l 754V \', ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES. ) ) Respondent. ) __________________ __ ) STIPULATION
The parties hereby stipulate to the following matters:
1. Victoria Martine/.,. petitioner. tiled a petition for vaccine compensation under the
National Vacch1c Injury Compensation Program. 42 U.S.C. §§ 300aa-10 to -34 (the ··Vaccine
Program.. ). The petition seeks compensation for injuries allegedl) related to petitioner's receipt
of the tctanus-diphtheria-acellular pertussis (..Tdap.. ) vaccine. which is contained in the Vaccine
Injw·y Table (the '"Table .. ), 42 C.F.R. § 100.3 (a).
2. Petitioner received the Tdap Yaccine on March 6, 2018.
3. The vaccination ~as admh1istercd within the United States.
4. Petitioner alleges that she sustained a Shoulder I11illf) Related to Vaccine
Administration c--sIRVA") followh1g her Tdap vaccine, within the time period set forth mthe Table. She further alleges that she experienced the residual effects of her alleged injuries for
more than six months after Yaccine administration.
5. Petitioner represents that there has been no prior award or settlement of a civil
action for damages on her behalf as a result of her condition. 6. Respondent denies that petitioner sustained a SIRVA Table i11jury: denies that the
vaccine caused pctitioner·s alleged shoulder injuries, or any other i~juries: and denies that her
condition is a sequclac of a vaccine-related ~jury.
7. \tfaintaining their abo\'e-stated positions. the parties ne\'ertheless now agree that
the issues between them shall be settled and that a dedc,ion 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 alter petitioner has filed an election to receive
compensation pursuant to 42 U.S.C. § 300aa-21(a)(l), the Secretary of Health and Hwnan
Services will issue the follov. ing vaccine compensation pa) ment:
A lump sum of $32.208.00 in the form of a check payable to petitioner. This amoW1t represents compensation for all damages that ~ouk.l be available Wlder 42 U.S.C. *300aa-15(a).
9. As soon as practicable after the entry of judgment on entitlement in thL~ 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.
lO. Petitioner and her attorney represent that compensation to be provided pursuant to
this Stipulation is not for any items or services for v..hich the Program is not primarily liable
Wlder 42 U .S.C. § 300aa-15(g). to the extent that payment has been made or can reasonably be
expected to be made wider 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 cl seq.)). or by entities that proYidc health ser\'ices on a pre-paid basii;.
2 11.
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1754V UNPUBLISHED
VICTORIA MARTINEZ, Chief Special Master Corcoran
Petitioner, Filed: December 9, 2021 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Tetanus HUMAN SERVICES, Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Injury Related to Respondent. Vaccine Administration (SIRVA)
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1
On November 13, 2019, Victoria Martinez 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 Table injury – Shoulder Injury Related to Vaccine Administration (“SIRVA”) – as a result of her March 6, 2018 tetanus diphtheria acellular pertussis (“Tdap”) vaccination. Petition at 1; Stipulation, filed at December 7, 2021, ¶¶ 1-2, 4. Petitioner further alleges the vaccine was administered within the United States, that she suffered the residual effects of her injury for more than six months, and that there has been no prior award or settlement of a civil action on her behalf as a result of her injury. Stipulation at ¶¶ 3-5; see Petition at ¶¶ 1, 18-19. “Respondent denies that [P]etitioner sustained a SIRVA Table injury; denies that the vaccine caused [P]etitioner’s alleged shoulder injuries, or any other injuries; and denies that her condition is a sequelae of a vaccine-related injury.” 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Nevertheless, on December 7, 2021, 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 $32,208.00 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
) VICTORIA MARTINEZ. ) ) Petitioner. ) ) No. 19-l 754V \', ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES. ) ) Respondent. ) __________________ __ ) STIPULATION
The parties hereby stipulate to the following matters:
1. Victoria Martine/.,. petitioner. tiled a petition for vaccine compensation under the
National Vacch1c Injury Compensation Program. 42 U.S.C. §§ 300aa-10 to -34 (the ··Vaccine
Program.. ). The petition seeks compensation for injuries allegedl) related to petitioner's receipt
of the tctanus-diphtheria-acellular pertussis (..Tdap.. ) vaccine. which is contained in the Vaccine
Injw·y Table (the '"Table .. ), 42 C.F.R. § 100.3 (a).
2. Petitioner received the Tdap Yaccine on March 6, 2018.
3. The vaccination ~as admh1istercd within the United States.
4. Petitioner alleges that she sustained a Shoulder I11illf) Related to Vaccine
Administration c--sIRVA") followh1g her Tdap vaccine, within the time period set forth mthe Table. She further alleges that she experienced the residual effects of her alleged injuries for
more than six months after Yaccine administration.
5. Petitioner represents that there has been no prior award or settlement of a civil
action for damages on her behalf as a result of her condition. 6. Respondent denies that petitioner sustained a SIRVA Table i11jury: denies that the
vaccine caused pctitioner·s alleged shoulder injuries, or any other i~juries: and denies that her
condition is a sequclac of a vaccine-related ~jury.
7. \tfaintaining their abo\'e-stated positions. the parties ne\'ertheless now agree that
the issues between them shall be settled and that a dedc,ion 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 alter petitioner has filed an election to receive
compensation pursuant to 42 U.S.C. § 300aa-21(a)(l), the Secretary of Health and Hwnan
Services will issue the follov. ing vaccine compensation pa) ment:
A lump sum of $32.208.00 in the form of a check payable to petitioner. This amoW1t represents compensation for all damages that ~ouk.l be available Wlder 42 U.S.C. *300aa-15(a).
9. As soon as practicable after the entry of judgment on entitlement in thL~ 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.
lO. Petitioner and her attorney represent that compensation to be provided pursuant to
this Stipulation is not for any items or services for v..hich the Program is not primarily liable
Wlder 42 U .S.C. § 300aa-15(g). to the extent that payment has been made or can reasonably be
expected to be made wider 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 cl seq.)). or by entities that proYidc health ser\'ices on a pre-paid basii;.
2 11. Payments made pursuant to paragraphs 8 and 9 of this Stipulation will be made in
accordance with 42 U.S.C. § 300aa- l5(i). su~jcct to the availability of sutlicient 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 payment described in paragraph 8 and any amount awarded
pursuant to paragraph 9. petitioner. in her individual capacity and on behalf of her heirs.
executors. administrations. successors or assigns. does forever irrevocably and unconditionally
release. acquit, and discharge the United States and the Secretary of J Jcalth and Hwnan Services
from any and all actions or call~es of action (including agreements. judgments. claims. damages.
loss of services. expenses, and all demands of whatever kind or natW'e) that have been brought.
could have been brought. or could he tin1ely 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 Tdap
vaccination administered on March 6. 2018. as alleged by petitioner in a petition for vaccine
compensation filed on November 13, 2019. in the United States Court of Federal Claims as
petition No. 19-1754V.
14. If petitioner should die prior to entry of judgment. this agreement shall be
voidable upon proper notice to the Court on he half of either or both of the parties.
3 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 fail-; 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 senlement of liability
and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended.
except as othernise noted in paragraph 9 above. There is absolutely no Uf:.'Teement on the pai1 of
the parties hereto to make an) 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 the Tdap vaccine caused petitioner's alleged
shoulder injury. any other i~jury, or her current disabilities.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner's heirs, executors. administrators. successors. and/or assigns.
END OF SI IPlJLATION
I
4 Respectfully submitted.
Al"THORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL:
, ~d r Ml'\..G'.\\j.__VPc.vJ-VVv-- IIEATIIER L. PEARLMAN Howie Law. P .C. Deputy Director 2608 Hibernia Street Torts Branch Dallas, Texas 75204 Ch·il Division Tel: (214) 662-6340 U.S. Department of Justice Email: jhowietq"J howiela\\ .net P.O. Box 146 Benjamin Franklin Station W ashinbrton. DC 20044-0146
AUTHORIZED REPRESEl'-TATIVE OF ATTORNEY OJ<~ RECORD FOR THE SECRETARY OF HEALTH AND RESPONDENT: HUMAN SERVICES: . eo.,-.,,cl.a ~ Ea.,v·icf. o& ~ , odSc-, A ~ £6,t., b"-j q_\ec~l~ /\ L fr c ~-~ TAMARA OVERBY () CLAUDIA B. GANGI Acting Director. Division of lnjw-y Senior Trial Attorney Compensation Programs Torts Branch. Ci\'il Division Health Systems Bw-eau U.S. Ocpurlmcnt of Justice I Iealth Resow-ces and Services P.O. Hox 146 Administration Benjamin franklin Station U.S. Department of Health Washington. DC 20044-0146 and 11 wnan Services Tel: (202) 919-6599 5600 Fishers l ,ane. 08N 146B Email: claudia.gangi""@usdoj.gov Rockville. MD 20857
Dated: 1z)c1 h(J?..,/