# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS

No. 1 2 - 879 V (Not to be published) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * J ANIE L. COSCIA ROBERTS , * Filed: November 1 4 , 2014 * Petitioner, * * Decision by Stipulation; Damages; v. * Influenza (“Flu”) Vaccine; * Transverse Myelitis ( “ TM ” ) SECRETARY OF HEALTH AND * HUMAN SERVICES , * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Diana S

. Sedar , Maglio Christopher and Toale, PA, Washington, D.C., for Petitioner

. Gordon E. Shemin , U.S. Dep’t of Justice, Washington, D

. C

. , for Respondent

. DECISION AWARDING DAMAGES 1


### On December 14 , 201 2 , Janie L. Coscia Roberts filed a petition seeking compensation under the National Vac cine Injury Compensation Program

. 2 

### Petitioner alleges that as a result of receiving the influenza (“flu”) vaccine on November 18, 2010 , s he suffered from Transverse Myelitis (“TM”) , and that s he experienced the effects of this injury for more than six months. Respondent denies that the flu vaccine caused Petitioner’s alleged T M , or any other injury , and further denies that Petitioner’s current disabilities are sequelae of a vaccine

- related

1 Because this ruling contains a reasoned explanation for my action in this case, it will be posted on the website of the United States Court of Federal Claims, in accordance with the E

- Government Act of 20 02, Pub. L. No. 107

- 347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. § 300aa

- 12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To do s o, Vaccine Rule 18(b) provides that each party has 14 days within which to request 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 incl udes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the ruling will be available to the public. Id.

2 The National Vaccine Injury Compensation Program comprises 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.A. ' 300aa

- 10

– 34 (2006)) [hereinafter “ Vaccine Act” or “the Act”]. Individual sections references hereafter will be to ' 300aa of the Act.

### 2

injury

. Nonetheless both parties , while maintaining their above

- stated positions, agreed in a s tipulation ( filed November 14 , 2014 ) that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation. I have reviewed the file , and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable

. I there fore adopt it as my decision in awarding damages on the terms set forth therein. The stipulation awards: A lump sum of $100,000.00 in the form of a check payable to petitioner. This amount represents compensatio n for all damages t hat would be avail able under 42 U.S.C. §300aa

- 15(a). Stipulation ¶ 8. I approve a Vaccine Program award in the requested amount s set forth above to be made to Petitioner

. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. 3



### IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Special Master

3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review.

### Case 1:12-vv-00879-UNJ Document 36 Filed 11/14/14 Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

JANIEL. COSCIA ROBERTS, Petitioner,

v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. 12-879V Special Master Corcoran

STIPULATION The parties hereby stipulate to the following matters: 

### 1. 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 the seasonal influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a).
2. Petitioner received her flu vaccination on or about November 18, 2010.
3. The vaccine was administered within the United States.
4. Petitioner alleges that the flu vaccine caused her to develop Transverse Myelitis ("TM") and that she 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 condition.
6. Respondent denies that the flu immunization is the cause of petitioner's alleged TM,
and/or any other injury.

### Case 1:12-vv-00879-UNJ Document 36 Filed 11/14/14 Page 2 of 5

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-2l(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $100,000.00 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)(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. § 300aa- 15(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 by 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 of this Stipulation, will be made in accordance with 42 U.S.C. 

### § 300aa15(i), subject to the availability of sufficient statutory funds.

2

### Case 1:12-vv-00879-UNJ Document 36 Filed 11/14/14 Page 3 of 5

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 her
individual capacity, and on behalf of her heirs, executors, administrators, successors and/or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United
States and the Secretary of Heahh 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 resuhed from, the flu vaccination administered on or about November 18, 2010, as alleged by petitioner in a petition for vaccine compensation filed

on or about December 14, 2012, in the United States Court of Federal Claims as petition No. 12- 879V.
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

3

### Case 1:12-vv-00879-UNJ Document 36 Filed 11/14/14 Page 4 of 5

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, 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 TM 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

4

### Case 1:12-vv-00879-UNJ Document 36 Filed 11/14/14 Page 5 of 5

Respectfully submitted,
PETITIONER:

Maglio, Christopher & Toale 1605 Main Street Suite 710 Sarasota, Florida 34236 (888) 952-5242

AUTHORIZED REPRESENTATIVE OF THESE RY OF HEALTH AND HU CES:

## I~ OUSTON, M.D., M.P.H.,FAAP Director, Division**of~ein:e** Injury Compensation Programs (DICP), Healthcare Systems Bureau, U.S. Department Of Health and Human Services 5600 Fishers Lane Park1awn Building, Mail Stop 1 lC-26 Rockville, MD 20857

5 AUTHORIZED REPRESENTATIVE OF UIE ATTORNEY**GE~L:**

# v~~~

# VIN~T~ATANOSKI**~** 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:

Trial Attorney Torts Branch Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington! DC 20044-0146 (202) 616-4208