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

*********************
GIOVANNI SEMINERIO,                *
as father and natural guardian of, *
V.S., a minor,                     *               No. 13-745V
                                   *               Special Master Christian J. Moran
                    Petitioner,    *
                                   *               Filed: September 6, 2016
v.                                 *
                                   *
SECRETARY OF HEALTH                *               Stipulation; pneumococcal conjugate
AND HUMAN SERVICES,                *               vaccine (“PCV”); mastocytosis.
                                   *
                    Respondent.    *
*********************

Michael A. London, J Douglas & London, P.C., New York, NY, for Petitioner;
Ann D. Martin, U.S. Dep’t of Justice, Washington, DC, for Respondent.

                             UNPUBLISHED DECISION1

       On September 2, 2016, the parties filed a joint stipulation concerning the
petition for compensation filed by Giovanni Seminerio, as father and natural
guardian of V.S., on July 6, 2015. In his petition, petitioner alleged that the
pneumococcal conjugate vaccine (“PCV”), which is contained in the Vaccine
Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which V.S. received on
December 22, 2010, caused him to develop a large abnormal mass/rash around the
injection site, which was subsequently diagnosed as mastocytosis. Petitioner
further alleges that V.S. experienced residual effects of this injury for more than
six months. Petitioner represents that there has been no prior award or settlement
of a civil action for damages on behalf of V.S. as a result of his condition.

       1
         The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
      Respondent denies that V.S.’s vaccine(s) caused a large abnormal mass/rash
around the injection site, mastocytosis, or any other injury or condition.

      Nevertheless, the parties agree to the joint stipulation, attached hereto as
Appendix A. The undersigned finds said stipulation reasonable and adopts it as the
decision of the Court in awarding damages, on the terms set forth therein.

       Damages awarded in that stipulation include:

       An amount sufficient to purchase the annuity contract described in
       paragraph 10 of the stipulation, paid to the life insurance company from
       which the annuity will be purchased (the “Life Insurance Company”).
       This represents compensation for all damages that would be available
       under 42 U.S.C. § 300aa-15(a).

       In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 13-745V according to this decision
and the attached stipulation.2

     Any questions may be directed to my law clerk, Shannon Proctor, at (202)
357-6360.

       IT IS SO ORDERED.

                                                     s/Christian J. Moran
                                                     Christian J. Moran
                                                     Special Master




       2
          Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.

                                                2
               IN THE UNITED STATES COURT OF FEDERAL CLAIMS

                              OFFICE OF SPECIAL MASTERS

GIOVANNI SEMINERJO, as father and              )
natural guardian ofV.S., a minor,              )
                                               )
               Petitioner,                     )
v.                                             )    No. 13-745V
                                               )    Special Master Moran
SECRETARY OF HEALTH AND HUMAN )                     ECF
SERVICES,                     )
                              )
          Respondent.         )
~~~~~~~~~~~~~~~ )

                                         STIPULATION

       The parties hereby stipulate to the following matters:

       l. On behalf of his son, V.S., 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 V.S.'s receipt of the

pneumococcal conjugate vaccine, which is contained in the Vaccine Injury Table (the "Table"),

42 C.F.R. § 100.3 (a).

       2. V .S. received pneumococcal conjugate, diphtheria-tetanus-acellular pertussis

("DTaP"), haemophilus influenza b ("Hib"), inactivated poliovirus ("IPV") and rotavirus

vaccines on December 22, 2010.

       3. The vaccines were administered within the United States.

       4. Petitioner alleges that the pneumococcal conjugate vaccine, which was administered

in V.S.'s right thigh, caused him to develop a large abnormal mass/rash around the injection site,

which was subsequently diagnosed as mastocytosis. Petitioner further alleges that V .S.

experienced 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 on behalf ofV.S. as a result of his condition.

       6. Respondent denies that V.S. 's vaccine(s) caused a large abnormal mass/rash around

the injection site, mastocytosis, or any other injury or condition.

       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 for all damages that would be available under 42

U.S.C. §300aa-l 5(a):

        An amount sufficient to purchase the annuity contract described in paragraph 10 below,
        paid to the life insurance company from which the annuity will be purchased (the "Life
        Insurance Company").

        9. The Life Insurance Company must have a minimum of$250,000,000.00 capital and

surplus, exclusive of any mandatory security valuation reserve. The Life lnsurance Company

must have one of the following ratings from two of the following rating organizations:

        a.      A.M. Best Compa~y: A++, A+, A+g, A+p, A+r, or A+s;

        b.      Moody's lnvestor Service Claims Paying Rating: Aa3, Aa2, Aal , or Aaa;

        c.      Standard and Poor's Corporation lnsurer Claims-Paying Ability Rating: AA-,
                AA, AA+, or AAA;

        d.      Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating:
                AA-, AA, AA+, or AAA.




                                                   2
         I 0. The Secretary of Health and Human Services agrees to purchase an annuity contract

from the Life lnsurance Company for the benefit ofV.S., pursuant to which the Life Insurance

Company will agree to make payments periodically to V.S. for all damages that would be

available under 42 U .S.C. §300aa-l 5(a), as follows:

         Beginning October 20, 2034, $13,001.47 payable annually for a period of ten (l 0)
         years certain only.

The payments provided for in this paragraph I 0 shall be made as set forth above. Should V .S.

predecease the exhaustion of any certain payments set forth above, any remaining certain

payments shall be made to his estate. Written notice to the Secretary of Health and Human

Services and to the Life Insurance Company shall be provided within twenty (20) days ofV.S.'s

death.

         I I. The annuity contract will be owned solely and exclusively by the Secretary of Health

and Human Services and will be purchased as soon as practicable following the entry of a

judgment in conformity with this Stipulation. The parties stipulate and agree that the Secretary

of Health and Human Services and the United States of America are not responsible for the

payment of any sums other than the amounts set forth in paragraph 8 herein and the amounts

awarded pursuant to paragraph 12 herein, and that they do not guarantee or insure any of the

future annuity payments. Upon the purchase of the annuity contract, the Secretary of Health and

Human Services and the United States of America are released from any and all obligations with

respect to future annuity payments.

         12. 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-2l(a)(l), and an application, the parties will submit to further proceedings



                                                  3
before the special master to award reasonable attorneys' fees and costs incurred in proceeding

upon this petition.

        13. 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.

        14. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to

paragraph 12 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i),

subject to the availability of sufficient statutory funds .

        15. The parties and their attorneys further agree and stipulate that, except for any award

for attorneys' fees and litigation costs, the money provided pursuant to this Stipulation will be

used solely for the benefit of V.S. as contemplated by a strict construction of 42 U.S.C. §300aa-

l 5{a) and (d), and subject to the conditions of 42 U .S.C. § 300aa-15(g) and (h).

        16. In return for the payments described in paragraphs 8 and 12, petitioner, in his

individual capacity and as legal representative of V.S., on behalf of himself, V.S., and 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



                                                    4
in any way growing out of, any and all known or unknown, suspected or unsuspected personal

injuries to or death ofV.S. resulting from, or alleged to have resulted from, the vaccinations

administered on December 22, 2010, as alleged by petitioner in a petition for vaccine

compensation filed on or about September 26, 2013, in the United States Court of Federal

Claims as petition No. 13-745V.

        17. IfV.S. 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.

        18. 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.

        19. This Stipulation expresses a full and complete negotiated settlement of liability and

damages claimed under the National Childhood Vaccine lnj ury Act of 1986, as amended, except

as otherwise noted in paragraph 12 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.

        20. Petitioner hereby authorizes respondent to disclose documents filed by petitioner in

this case consistent with the Privacy Act and the routine uses described in the National Vaccine

Injury Compensation Program System of Records, No. 09-15-0056.




                                                   5
       21. This Stipulation shall not be construed as an admission by the United States or the

Secretary of Health and Human Services that pneumococcal conjugate and/or DTaP and/or Hib

and/or IPV and/or rotavirus vaccines caused V .S. to suffer a large abnormal mass/rash around the

injection site, mastocytosis, or any other injury or condition.

       22. All rights and obligations of petitioner hereunder shall apply equally to petitioner' s

heirs, executors, administrators, successors, and/or assigns as legal representatives of V.S.

                                   END OF STlPULA TION

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RespectfuUy submitted,




ATTORNEY OF RE
PETITIONER:

                                                                                  -
MIC       L                   ON.,.._...,'"'                      E. REEVES
DOUGLAS & LONDON, P.C.                             Acting Deputy Director
 59 Maiden Lane, 6th Floor                         Torts Branch
 New York, NY 10038                                Civil Division
 Tel: (212) 566-7500                               U.S. Department of Justice
                                                   P.O. Box 146
                                                   Benjamin Franklin Station
                                                   Washington, DC 20044-0146

 AUTHORIZED REPRESENTATIVE                         ATTORNEY OF RECORD FOR
 OF THE SECRJ}TARY OF HEALTH                       RESPONDENT:
 AND HU~. s~rroES:
                                   j

   xful~/~/ )--1:•.~
               1          ,
               ,   ·' I           ,'


 N     Y     I-JA , M.D.
                                                   ~ 7211/~·
                                                   ANN D. MARTIN
 Acting Director, Division of Injury               Senior Trial Attorney
 Compensation Programs                             Torts Branch, Civil Division
 Healthcare Systems Bureau                         U.S. Department of Justice
 Health Resources and Services Administration      P.O. Box 146
 U.S. Department of Health and Human Services      Benjamin Franklin Station
 5600 Fishers Lane                                 Washington, DC 20044-0146
 Parklawn Building, Mail Stop 08Nl46B              Tel: (202) 307-1815
 Rockville, MD 20857



 Dated:   r; -~ - {p          j




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