Saccone v. Secretary of Health and Human Services ( 2021 )

Sn the Gunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: October 20, 2021
* * * * * * * * * * * * *
GIANLUCA SACCONE, * UNPUBLISHED
*
Petitioner, * No. 18-113V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Decision on Stipulation;
AND HUMAN SERVICES, * Influenza (‘flu’); Guillain-
* Barre syndrome (“GBS”).
*
Respondent. *
* * * * * * * * * * * * *
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Wei K. Tai, U.S. Dept. of Justice, Washington, D.C., for respondent.
DECISION ON STIPULATION!
On January 23, 2018, Gianluca Saccone (“petitioner”), filed a petition for compensation
under the National Vaccine Injury Program.” Petition at Preamble (ECF No. 1). The petition
alleges that the influenza (“flu”) he received on December 22, 2015 caused him to suffer
Guillain-Barre syndrome (“GBS”). Petition at Preamble; Stipulation (ECF No. 74).
On October 19, 2021, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation. Respondent denies that the flu
vaccine is the cause of petitioner’s GBS or any other injury. Jd. at | 6. Nevertheless,
maintaining their respective positions, the parties now agree that the issues between them shall
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion 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.” /d. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. /d.
? 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.
be settled and that a decision should be entered awarding the compensation to the petitioner
according to the terms of the stipulation attached hereto as Appendix A. /d. at (7.
The stipulation provides:
1) A lump sum of $50,000.00 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) for injuries allegedly related to petitioner’s receipt of the
flu vaccine.
I adopt the parties’ stipulation attached hereto, and award compensation in the amount
and on the terms set forth therein. The Clerk of the Court SHALL ENTER JUDGMENT in
accordance with the terms of the parties’ stipulation.*
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
GIANLUCA SACCONE,
Petitioner,
v. No. 18-113V
Special Master Gowen
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the followng matters:
1. Gianluca Saccone (“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 an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the
“Table”), 42 C.F.R. § 100.3(a).
2. Petitioner received a flu vaccine on December 22, 2015, in his right deltoid.
3. The vaccine was administered within the United States.
4, Petitioner alleges that he suffered Guillam Barre Syndrome (“GBS”), which was
caused by the vaccine. He further alleges that he experienced residual effects of this alleged
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 his condition.
6. Respondent denies that the flu immunization caused or significantly aggravated
petitioner’s alleged GBS injury and/or any other 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 $50,000.00 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) for injuries allegedly related to petitioner’s receipt of the flu vaccine.
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, surance 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 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 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 payments described in paragraphs 8 and 9, petitioner, in his
individual capacity and on behalf of his heirs, executors, administrators, successors and/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 flu vaccination administered on or
about December 22, 2015, as alleged by petitioner in a petition for vaccine compensation filed
on January 23, 2018, in the United States Court of Federal Claims as petition No. 18-113V.
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 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 the flu vaccine caused petitioner’s alleged GBS
injury and/or any other 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
~~ ~~ SSS
Respectfully submitted,
PETITIONER:
wp eetlone, Ca coer
GIANLUCA SACCONE
ATTORNEY OF RECORD FOR
PETITIONER:
(MA
AMY A, SENERTH
Muller Brazil, LLP
715 Twinning Road
Suite 208
Dresher, PA 19025
(215) 885-1655
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Dake Wluthlar, PN Sc, APN, or
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs (DICP)
Health Systems Bureau
Health Resources and Services
Administration
U.S. Department of Health
and Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
Dated: | of 17 loz
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
hee L. nel Ke
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:
We fe
WEI KIT (RICKY) TAI
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 616-9847
Wei.Tai@usdoj.gov