DEVITA v. SECRETARY OF HEALTH AND HUMAN SERVICES

OCR transcription for search; preserved printed pages are authoritative

Case 1:23-vv-02199-UNJ Document 34 _ Filed 01/23/26 Page1of8

In the Anited States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 23-2199V
NASH JAMES DEVITA, Chief Special Master Corcoran
Petitioner,
V. Filed: December 23, 2025

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.

Benjamin Rex Eisenberg, U.S. Department of Justice, Washington, DC, for
Respondent.

DECISION ON JOINT STIPULATION’

On December 29, 2023, Petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, ef seq.” (the
“Vaccine Act”). On September 19, 2022, Petitioner received an influenza (“flu”) vaccine,
a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).
Petitioner alleges that he suffered from a shoulder injury related to vaccine administration
(“SIRVA”) as defined in the Table; he further alleges that the vaccine caused his alleged
injury, and that he suffered the residual effects of his alleged injury for more than six
months.

Respondent denies that Petitioner sustained a Table SIRVA injury; denies that
Petitioner’s alleged shoulder injury or its residual effects were caused-in-fact by the flu

' Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https:/Awww.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (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, |
agree that the identified material fits within this definition, | will redact such material from public access.

? National 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 (2018).

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

2
vaccine; and denies that the flu vaccine caused Petitioner any other injury or Petitioner’s
current condition.
Nevertheless, 	on 	December 	23, 	2025, 	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 $92,500.00 to be paid through an ACH deposit to Petitioner’s
counsel’s IOLTA account for prompt disbursement to Petitioner. Stipulation
¶ 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 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.
Case 1:23-vv-02199-UNJ Document 34 Filed 01/23/26 Page 2 of 8

Case 1:23-vv-02199-UNJ Document 34 Filed 01/23/26 Page 3of8

Docusign Envelope ID: C1EE2368-3ADD-4B4C-B85D-1FBE71273CE8

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

NASH JAMES DEVITA,

Petitioner, No. 23-2199V (SPU)

Chief Special Master Corcoran

Vv. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

STIPULATION

The parties hereby stipulate to the following matters:

1. Nash James Devita (“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 in his left deltoid on September 19, 2022.!

3. The vaccine was administered within the United States.

! On December 4, 2022, petitioner received a COVID-19 vaccine in his left deltoid. Vaccines
against COVID-19 are not contained in the Vaccine Injury Table. See 42 U.S.C. § 300aa-14 and
42 C.F.R. § 100.3(a). Pursuant to the declaration issued by the Secretary of Health and Human
Services under the Public Readiness and Emergency Preparedness Act (42 U.S.C. §§ 247d-6d,
247d-6e), claims for alleged injuries from COVID-19 countermeasures, including vaccines, may
be compensable under the Countermeasures Injury Compensation Program (“CICP”). See 85
Fed. Reg. 15198, 15202 (March 17, 2020).

Case 1:23-vv-02199-UNJ Document 34 Filed 01/23/26 Page 4of8

Docusign Envelope ID: C1EE2368-3ADD-4B4C-B85D-1FBE71273CE8

4. Petitioner alleges that he sustained a shoulder injury related to vaccine administration
following receipt of the flu vaccine. Petitioner further alleges that petitioner suffered the residual
effects of the 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 on petitioner’s behalf as a result of the alleged injury.

6. Respondent denies that petitioner sustained a Table SIRVA injury; denies that
petitioner’s alleged shoulder injury or its residual effects were caused-in-fact by the flu vaccine;
and denies that the flu vaccine caused petitioner any other injury or petitioner’s current
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-21(a)(1), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:

A lump sum payment of $92,500.00 to be paid through an ACH deposit to

petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner. This

amount represents compensation for all damages that would be available under 42

U.S.C. § 300aa-15(a).

9. Assoonas 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.

Case 1:23-vv-02199-UNJ Document 34 Filed 01/23/26 Page5of8

Docusign Envelope ID: C1EE2368-3ADD-4B4C-B85D-1FBE71273CE8

10. Petitioner and petitioner’s 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.

11. Payments 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 attorney’s fees and litigation costs, and past unreimbursed 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 petitioner’s
individual capacity, and on behalf of petitioner’s heirs, executors, administrators, successors or
assigns, (a) 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
hereafter could be timely brought in the Court of Federal Claims, under the Vaccine Injury
Compensation Program, 42 U.S.C. § 300aa-10 et seq., (i) 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

Case 1:23-vv-02199-UNJ Document 34 Filed 01/23/26 Page 6of8

Docusign Envelope ID: C1EE2368-3ADD-4B4C-B85D-1FBE71273CE8

petitioner resulting from, or that may be alleged to have resulted from, the vaccination
administered on September 19, 2022, and (ii) that petitioner has had, now has, or hereafter may
have with respect to the injury that gave rise to the petition for vaccine compensation filed on or
about December 29, 2023, in the United States Court of Federal Claims as petition No. 23-
2199V; and (b) waives any and all rights to any compensation that may be available under the
Countermeasures Injury Compensation Program (CICP), 42 U.S.C. § 247d-6e (or an action
under 42 U.S.C. § 247d-6d(d)), fora claim alleging that a covered countermeasure, including the
COVID-19 vaccination administered on December 4, 2022, on its own or in combination with
the flu vaccination administered on September 19, 2022, caused or seriously aggravated the
injuries that were the subject of the petition for vaccine compensation filed on or about
December 29, 2023, in the United States Court of Federal Claims as petition 23-2199V,
including a SIRVA, for which petitioner will receive compensation pursuant to this Stipulation.
If petitioner has such a claim currently pending with the CICP, petitioner hereby withdraws such
claim for compensation in the CICP.* If no claim for compensation has been filed in the CICP
as of the date this Stipulation is filed, petitioner waives the right to file a claim as described in
this paragraph for compensation in the CICP.

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

2 After entry of judgment reflecting a decision consistent with the terms of this Stipulation,
petitioner agrees that respondent will send this Stipulation to the CICP as evidence of petitioner’s
withdrawal of their CICP claim and waiver of any potential compensation under the CICP.

Case 1:23-vv-02199-UNJ Document 34 Filed 01/23/26 Page /7 of8

Docusign Envelope ID: C1EE2368-3ADD-4B4C-B85D-1FBE71273CE8

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 paymentor 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 injury or
any other injury or petitioner’s current disabilities.

18. Allrights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

Case 1:23-vv-02199-UNJ Document 34

Docusign Envelope ID: C1EE2368-3ADD-4B4C-B85D-1FBE71273CE8

Respectfully submitted,

PETITIONER:

DocuSigned by:

| IBS. ,2008 10:11 PST

206446.

NASH JAMES DEVITA

ATTORNEY OF RECORD FOR
PETITIONER:

nite Log ESOr

Jeffrey S. Pop & Associates
9150 Wilshire Blvd.

Suite 241

Beverly Hills, CA 90212-3429
310-273-5462
jpop@poplawyer.com

AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:

Digitally signed by Jeffrey S. Beach -S

Jeffrey S.

Beach -S for
CAPT GEORGE REED GRIMES, MD, MPH
Director, Division of Injury

Compensation Programs
Health Systems Bureau
Health Resources and Services

Administration
U.S. Department of Health

and Human Services
5600 Fishers Lane, 14W-18
Rockville, MD 20857

Dated: 12/23]2025

Filed 01/23/26 Page 8of8

AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:

He

HEATHER L. PEARLMAN
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:

V3eqyanm Exrtenbug
wy Neth - Peet

BENJAMIN EISENBERG

Trial Attorney

Torts Branch

Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, DC 20044-0146

202-514-4074

benjamin.eisenberg@usdoj.gov