VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01045
Package ID: USCOURTS-cofc-1_19-vv-01045
Petitioner: Charles Silvestri
Filed: 2019-07-18
Decided: 2022-01-20
Vaccine: Tdap
Vaccination date: 2019-01-09
Condition: left shoulder injury
Outcome: compensated
Award amount USD: 40000

AI-assisted case summary:
Charles Silvestri filed a petition for compensation on July 18, 2019, alleging he suffered a left shoulder injury, specifically Shoulder Injury Related to Vaccine Administration (SIRVA), as a result of a tetanus diphtheria acellular pertussis (Tdap) vaccine he received on January 9, 2019. Mr. Silvestri alleged that the effects of his injury lasted for more than six months and that he had not received any prior award or settlement for his condition. The respondent, the Secretary of Health and Human Services, denied that Mr. Silvestri sustained a SIRVA Table injury, denied that the Tdap vaccine caused or significantly aggravated his alleged shoulder injuries or any other injury, and denied that his current condition was a sequelae of a vaccine-related injury. Despite these denials, the parties filed a joint stipulation on December 21, 2021, agreeing to a settlement. Chief Special Master Brian H. Corcoran adopted the stipulation, awarding Mr. Silvestri $40,000.00 in compensation for all items of damages. This award represents a compromise of liability and damages. The case was presented as a Table claim. Petitioner was represented by Michael Pottetti, and Respondent was represented by Jeremy Fugate. The decision was issued on January 20, 2022.

Theory of causation field:
Petitioner Charles Silvestri alleged a left shoulder injury, specifically SIRVA, following a Tdap vaccination on January 9, 2019. The condition was alleged to have lasted more than six months. Respondent denied a SIRVA Table injury, causation, or aggravation by the vaccine. The parties filed a joint stipulation agreeing to a settlement. The case was presented as a Table claim. Chief Special Master Brian H. Corcoran adopted the stipulation, awarding $40,000.00 as a lump sum for all damages. Petitioner was represented by Michael Pottetti, and Respondent by Jeremy Fugate. The decision date was January 20, 2022.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01045-0
Date issued/filed: 2021-09-16
Pages: 7
Docket text: PUBLIC ORDER/RULING (Originally filed: 08/16/2021) regarding 35 Findings of Fact & Conclusions of Law,, Scheduling Order,, Motion to Dismiss, Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01045-UNJ Document 37 Filed 09/16/21 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1045V
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CHARLES SILVESTRI * Chief Special Master Corcoran
*
Petitioner, * Filed: August 16, 2021
*
* Vaccine Act; Fact Ruling;
v. * Six Month Residual Requirement;
* Tetanus-diphtheria-acellular
* pertussis (“Tdap); Shoulder
SECRETARY OF HEALTH * Injury Related to Vaccine
AND HUMAN SERVICES, * Administration (SIRVA); Special
* Processing Unit (SPU)
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Michael W. Pottetti, Law Offices of Michael W. Pottetti, Port Jefferson, NY, for
Petitioner.
Jeremy Fugate, U.S. Department of Justice, Washington, DC, for Respondent.
ORDER DENYING RESPONDENT’S MOTION TO DISMISS AND
FACT RULING ON SIX MONTH REQUIREMENT1
On July 18, 2019, Charles Silvestri filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et. seq, (the
“Vaccine Act” or “Program”). Petitioner alleges that he developed a left shoulder injury
related to vaccine administration (“SIRVA”) as a result of receiving a tetanus-diphtheria-
acellular pertussis (“Tdap”) vaccine on January 9, 2019. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
After a review of the petition and supporting documents, Respondent filed a Motion
to Dismiss, asserting that Petitioner had not established that he suffered from the residual
1 Because this unpublished Order 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 Fact Ruling 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.
1

Case 1:19-vv-01045-UNJ Document 37 Filed 09/16/21 Page 2 of 7
effects of his alleged vaccine-related injury for more than six months after vaccination as
required by the Vaccine Act. Respondent’s Motion to Dismiss (“Mot.”); ECF No. 31. For
the reasons discussed herein, Respondent’s motion is DENIED.
I. Procedural History
With his Petition on July 18, 2019, Petitioner filed 11 medical record exhibits as
well as affidavits from Petitioner and several of Petitioner’s family members. ECF No. 1.
Petitioner filed two medical record exhibits on January 25, 2021 (ECF No. 26) and two
additional medical record exhibits and a Statement of Completion on February 24, 2021.
ECF 29-30.
After conducting a review of the records, Respondent filed a Motion to Dismiss in
March 2021, arguing that the “Petitioner’s claim does not satisfy the Vaccine Act’s severity
requirement.” Mot. at 1. Specifically, Respondent asserted that contemporaneous
medical records “do not document that he experienced the residual effects of his alleged
injury for more than six months, or that his injury resulted in inpatient hospitalization and
surgical intervention.” Id. at 3.
On April 27, 2021, Petitioner filed his response to the Motion to Dismiss (“Opp.”).
ECF No. 33. In it, Petitioner argues that that because he provided contemporaneous
medical records establishing that he suffered from his alleged injury for more than five
months, as well as a reasonable explanation as to why he discontinued seeking medical
care, the requirements of the Vaccine Act have been met. Id. at 6.
II. Medical History
Prior to his vaccination, Petitioner’s medical history does not reflect any record of
shoulder pain. See generally Ex. 4 at 8-9.2 On January 9, 2019, Petitioner received a
Tdap vaccination in his left deltoid. Ex. 6 at 8. In his affidavit, Petitioner stated that the
onset of pain was almost immediate after vaccine administration. Ex. 2 at ¶7. He further
stated that the pain continued and worsened, with the range of motion in his left shoulder
becoming severely limited. Id. at ¶7-8.
On January 28, 2019, Petitioner presented to his primary care provider, Dr. Andrew
Radzik. Ex. 4 at 7. The medical record documenting this consultation reveals that
Petitioner “on 1/9/19 received Tdap vaccine; shortly after developed pain in left upper
2 Petitioner’s relevant medical history includes treatment for anxiety and depression (with panic attack),
and hypertension.
2

Case 1:19-vv-01045-UNJ Document 37 Filed 09/16/21 Page 3 of 7
arm, near vaccine site, radiating to the shoulder and neck. At times difficulty moving left
arm. No swelling or redness. No known injury.” Id. Petitioner was prescribed Celebrex
and Dr. Radzik indicated that an orthopedic evaluation would be considered if Petitioner’s
pain did not improve. Id.
On February 20, 2019, Petitioner presented to Dr. Armand Abulencia, an
orthopedic surgeon. Ex. 5 at 1. During his visit, Petitioner complained of left shoulder pain
that had been present since January 9, 2019, the date of his vaccination. Id. Petitioner
stated there was no prior injury. Id. Dr. Abulencia found “positive impingement signs” and
that “strength of abduction and flexion were diminished.” Id. at 2. Petitioner was
prescribed a Medrol dosepak and discussed both physical therapy and steroid injection.
Id. at 3. Petitioner was diagnosed with acute bursitis of the left shoulder, impingement
syndrome of the left shoulder, osteoarthritis of the left acromioclavicular joint, and left
shoulder pain, unspecified chronicity. Id. at 2-3.
Beginning on February 25, 2019, Petitioner began treatment with Dr. Raymond A.
Semente, a chiropractor. Ex. 7 at 1. At the initial visit, Dr. Semente found Petitioner’s
active and passive range of motion severely restricted and suggested a treatment plan
with laser treatments three times a week for two weeks. Id. at 5-6. Petitioner completed
the laser treatments on March 11, 2019. Id. at 46.
On March 9, 2019, Petitioner presented to the emergency room at St. Catherine
of Siena Medical Center. Ex. 10 at 116. Petitioner complained of left shoulder pain that
radiated to the left side of his chest. Id. at 122. Petitioner received several diagnostic
tests, was prescribed a Medrol dosepak and Percocet, and was referred to both
orthopedic surgery and neurology for follow up treatment. Id. at 155.
On March 11, 2019, Petitioner presented to Dr. Raj Krishnan, a pain management
specialist. Ex. 9 at 1. Dr. Krishnan prescribed Gabapentin and encouraged Petitioner to
follow up with neurology and orthopedics, and to return in 3-4 weeks. Id. at 3.
On March 13, 2019, Petitioner was evaluated by Dr. Justin Mizra, an orthopedist.
Ex. 10 at 2. Petitioner reported pain of 6/10 and limited range of motion with stiffness. Id.
Dr. Mizra’s exam noted grossly limited range of motion with pain. Id. At a follow-up visit
on March 27, 2019, an MRI of the left shoulder revealed an incomplete tear of Petitioner’s
rotator cuff. Id. at 6. Dr. Mizra discussed treatment options with Petitioner and together
they decided on conservative treatment and physical therapy. Id. at 7. Petitioner noted
that Dr. Mizra wanted to administer a cortisone shot, but Petitioner declined at that time.
Ex. 16 at ¶6.
3

Case 1:19-vv-01045-UNJ Document 37 Filed 09/16/21 Page 4 of 7
Mr. Silvestri attended physical therapy for his left shoulder from April 3, 2019
through June 12, 2019. Ex. 12, 15. Notes documenting the initial physical therapy
evaluation, which took place on April 3, 2019, indicate that Petitioner received a Tdap
vaccine on January 9, 2019, and experienced left shoulder pain and a decrease in range
of motion. Ex. 12 at 4.
Mr. Silvestri’s last physical therapy appointment for his left shoulder took place on
June 12, 2019. Ex. 15 at 2. The physical therapy notes documenting this visit indicate
that Petitioner “returns no new complaints at the shoulder.” Id. The therapist noted that
Petitioner should continue with the current plan and would see his doctor the following
week. Id. Petitioner then elected to continue with a home exercise regimen to continue
strengthening his arm. Ex. 9 at ¶4-5. Petitioner explained that he considered returning to
Dr. Mizra but did not due to his desire to avoid a cortisone injection, which he knew Dr.
Mizra would recommend based on his prior visits. Id. at ¶6.
Petitioner did not seek medical treatment for his left shoulder after June 12, 2019.
III. Affidavit Testimony Regarding Six Month Requirement
As previously noted, Mr. Silvetri’s medical records do not document any
contemporaneous complaints of left shoulder pain after June 12, 2019. However,
beginning in July 2019, Petitioner continued to treat his left shoulder with exercises he
learned in physical therapy, and with Tylenol and Blue-Emu pain relief cream. Ex. 9 at ¶7.
Although he has experienced some improvement, Petitioner stated that he had not
regained full strength in his left shoulder and continued, at least through January 23, 2021,
to experience “flare-ups” of pain that he managed on his own. Id. at ¶8-9.
In his second affidavit, Petitioner stated that he believed, based on his previous
appointments with Dr. Mizra, that seeking additional medical treatment for his shoulder
would include cortisone injections. Ex. 9 at ¶6. He explained that “because of his anxiety
of having further injections in that left arm, he is reluctant to visit physicians that will try to
persuade him to get them.” Id. at ¶8.
IV. Discussion
Under the Vaccine Act, a petition for compensation must contain “supporting
documentation, demonstrating that the person who suffered [a vaccine related injury] ...
suffered the residual effects or complications of such illness, disability, injury, or condition
for more than 6 months after the administration of the vaccine.” Section 11(c)(1)(D)(i).
The burden is on the petitioner to establish, by a preponderance of the evidence, the
4

Case 1:19-vv-01045-UNJ Document 37 Filed 09/16/21 Page 5 of 7
persistence of a vaccine-caused injury for longer than six months. Song v. Sec'y of Health
& Human Servs., 31 Fed. Cl. 61, 65–66, aff'd, 41 F.3d 1520 (Fed.Cir.1994). However,
dismissal is not appropriate if it appears the parties reasonably contest the length of time
that petitioner has suffered from the effects of his alleged vaccine injury. See, e.g., Faup
v. Sec’y of Health & Human Servs., No. 12-87V, 2015 WL 443802, at *4 (Fed. Cl. Spec.
Mstr. Jan. 13, 2015).
Although a petitioner cannot establish the length or ongoing nature of an injury
merely through his self-assertion, the fact that a petitioner did not receive medical care
for the entire six-month period does not necessarily indicate that there are no remaining
or residual effects from the alleged injury. See, e.g., Herren v. Sec’y of Health & Human
Servs., No. 13-100V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014) (finding
that petitioner suffered from residual symptoms that, due to their mild nature, did not
require medical care).
Here, there appears to be no dispute that Petitioner received the Tdap vaccine on
January 9, 2019, and he therefore must demonstrate by preponderant evidence that
residual symptoms continued through July 9, 2019. Herren, 2014 WL 3889070, at *2; see
also Hinnefeld v. Sec’y of Health & Human Servs., No. 11-328V, 2012 WL 1608839, at
*4-5 (Fed. Cl. Spec. Mstr. Mar. 30, 2012) (dismissing case where medical history revealed
that petitioner’s Guillain-Barré syndrome resolved less than two months after onset).
The medical records demonstrate that, in the immediate months following his Tdap
vaccination, Petitioner consistently sought treatment for his left shoulder injury. Between
January 28, 2019 and March 9, 2019, Petitioner sought care for his shoulder from his
primary care provider, as well as an orthopedic surgeon and the emergency room, with
primary complaints of left shoulder pain. Ex. 4 at 7; Ex. 5 at 1; Ex. 10 at 116. Additionally,
Petitioner received a course of chiropractic care, including laser treatments, from
February 25, 2019 through March 11, 2019. Ex. 7 at 1-46. Petitioner also attended
physical therapy from April 3, 2019 through June 12, 2019, five months and three days
post-vaccination. See generally Ex. 12, 15. At the time of his last physical therapy visit,
Petitioner had a continuing plan for additional treatment and a follow up with his doctor
and was not discharged from treatment. Ex. 15 at 2.
However, following Petitioner’s June 12, 2019 physical therapy appointment, there
are no contemporaneous medical records documenting his shoulder injury. Nevertheless,
Petitioner’s affidavits provide evidence that he continued to experience intermittent pain
and weakness in his left arm and shoulder through at least January 23, 2021. See
generally Ex. 9. I find that Petitioner has provided a credible explanation of why he did
not seek additional care for his injury after June 12, 2019. Specifically, Petitioner
5

Case 1:19-vv-01045-UNJ Document 37 Filed 09/16/21 Page 6 of 7
explained that he suffered from anxiety about further injections in his left arm after his
experience with the Tdap vaccination. Ex. 9 at ¶8.3 Petitioner believed, based on his
previous appointments with his orthopedic surgeon, that additional treatment would
include cortisone injections. Id. at ¶6. Due to his history of anxiety and apprehension of
further injections in his left arm after injury from vaccination, this rationale is
understandable.
A number of facts better support Petitioner’s position on severity. In particular, the
medical record documenting Petitioner’s June 12, 2019 visit to his physical therapist does
not establish that his SIRVA injury was in fact fully resolved as of that date. Ex. 15 at 2.
Rather, at the time of the physical therapy appointment, Petitioner remained on a
treatment plan, including follow up with his physician the following week. Id. Other witness
statement evidence corroborate this information. Thus, Petitioner stated that after that
appointment he continued to rehabilitate his shoulder on his own, doing exercises he
learned in physical therapy and treating pain with over-the counter medications. Ex. 9 at
¶4-5. Petitioner further stated that he continued to have “problems with arm strength and
mobility” and “flare-ups” of pain into July and August 2019, and to a lesser degree
continuing through at least January 23, 2021. Id. at ¶5, 7, 9. Further, the Federal Circuit
has held that it is appropriate to credit the lay testimony of petitioner when said testimony
does not conflict with the medical records. See Kirby v. Sec’y of Health & Human Servs.,
997 F.3d 1378, 1384 (Fed. Cir. 2021) (affirming special master’s finding of severity based
on petitioner’s testimony in the absence of contemporaneous medical records).
Overall – taking into account the remedial nature of the Program, and the
reasonable evidence suggesting that sequelae of Petitioner’s SIRVA remained beyond
his last formal day of physical therapy – the evidence supports a finding that severity has
been met. At worst, this case represents a “close-call,” and in “the Vaccine Program,
petitioners are accorded the benefit of close calls.” Roberts v. Sec’y of Health & Human
Servs., No. 09-427V, 2013 WL 5314698, at *10 (Fed. Cl. Aug. 29, 2013).
V. Conclusion
Based on the record as a whole, Petitioner has established that he suffered
the residual effects of his vaccine-related injury for at least six months as required
by the Vaccine Act. Therefore, Respondent’s Motion to Dismiss is DENIED.
3 Petitioner has a long history of anxiety, including a panic attack, for which he received medical treatment.
See generally Ex. 4.
6

Case 1:19-vv-01045-UNJ Document 37 Filed 09/16/21 Page 7 of 7
The parties are encouraged to consider an informal resolution of this claim.
Accordingly, by no later than September 17, 2021, Petitioner shall communicate a
demand to Respondent and file a status report updating the court on the parties’
settlement discussions. Additionally, Petitioner shall file any updated medical
records by September 17, 2021.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7

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DOCUMENT 2: USCOURTS-cofc-1_19-vv-01045-1
Date issued/filed: 2022-01-20
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 12/21/2021) regarding 40 DECISION Stipulation/Proffer Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01045-UNJ Document 43 Filed 01/20/22 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1045V
UNPUBLISHED
CHARLES SILVESTRI, Chief Special Master Corcoran
Petitioner, Filed: December 21, 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)
Michael William Pottetti, Port Jefferson, New York, for Petitioner.
Jeremy Fugate, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION1
On July 18, 2019, Charles Silvestri 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 he suffered a left shoulder injury as a result of a
tetanus diphtheria acellular pertussis (“Tdap”) vaccine he received on January 9, 2019.
Petition at ¶¶ 4; Stipulation, filed at December 21, 2021, ¶¶ 2, 4. Petitioner further alleges
that he suffered the effects of his injury for more than six months and has not received
any prior award or settlement as a result of his condition. Petition at ¶¶ 13-14; Stipulation
at ¶¶ 4-5. Respondent “denies that Petitioner sustained a SIRVA Table injury; denies that
the Tdap vaccine caused or significantly aggravated Petitioner’s alleged shoulder injuries
or any other injury; and denies that his current condition is a sequelae of a vaccine-related
injury.” Stipulation at ¶ 6.
Nevertheless, on December 21, 2021, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. I find the
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.
2 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 (2012).

Case 1:19-vv-01045-UNJ Document 43 Filed 01/20/22 Page 2 of 7
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 $40,000.00 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

Case 1:19-vv-01045-UNJ Document 43 Filed 01/20/22 Page 3 of 7
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
*************************************
CHARLES SILVESTRI, *
*
Petitioner, * No. 19-1045V
* Chief Special Master Corcoran
V. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*************************************
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 a tetanus
diphtheria-acellular pertussis (''Tdap") vaccine, which vaccine is contained in the Vaccine Injury
Table (the ''Table"), 42 C.F.R. § 100.3 (a).
2. Petitioner received a Tdap immunization on January 9, 2019.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he sustained a shoulder injury related to vaccine
administration ("SIRVA") within the time period set forth in the Table. He further alleges that
he has 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 his behalf as a result of his condition.

Case 1:19-vv-01045-UNJ Document 43 Filed 01/20/22 Page 4 of 7
6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the
Tdap vaccine caused or significantly aggravated petitioner's alleged shoulder injuries or any
other injury; and denies that his current condition is a sequelae of a vaccine-related 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 descnbed 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 SecretaryofHeahh and Human
Services will issue the following vaccine compensation payment:
A lump sum of $40,000.00 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 fded 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.
10. Petitioner and his attorney representthat 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 heahh benefits programs (o ther than Title XIX of the Social Security Act (4 2 U.S. C.
§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.
2

Case 1:19-vv-01045-UNJ Document 43 Filed 01/20/22 Page 5 of 7
11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 9 ofthis 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, 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
individua 1 capacity and on behalf of 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. § 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, a Tdap vaccination administered on January 9, 2019, as
alleged by petitioner in a petition for vaccine compensation ftled on or about July 18, 2019, in
the United States Court of Federal Claims as petition No. 19-1045V.
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
3

Case 1:19-vv-01045-UNJ Document 43 Filed 01/20/22 Page 6 of 7
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 descnbed 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 petitioner sustained a SIRVA Table injury; that the
Tdap vaccine caused or significantly aggravated petitioner's alleged shoulder injuries or any
other injury; and/or that his current condition is a sequelae of a vaccine-related 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
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Case 1:19-vv-01045-UNJ Document 43 Filed 01/20/22 Page 7 of 7
Respectfully submitted,
PETITIONER:
CHARLES SILVESTRI
ATTORNEY OF RECORD AUTHORIZED REPRESENTATIVE
FOR PETITIONER: OF THE ATTORNEY GENERAL:
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T~~CAAA/\c-
MICHAEL POTTETTI
Law Office of Michael Pottetti Deputy Director
407 E. Main Street Torts Branch
Suite 17, #74 Civil Divis ion
Port Jefferson, New York 11777 U.S. Department of Justice
Tel: 631-978-0433 P.O. Box 146
Benjamin Franklin Station Washington,
DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
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DdtL ~ ' DffSc.z A/JM,
TAMARA OVERBY {) JEREMY C. FUGATE
Acting Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch
Heahh Systems Bureau Civil Division
Heahh Resources and Services U.S. Department of Justice
Administration P.O. Box 146
U.S. Department of Heahh Benjamin Franklin Station Washington,
and Human Services DC 20044-0146
5600 Fishers Lane, 08N 146B Tel: (202) 616-4181
Rockville, MD 20857 Email: Jeremy.Fugate2@usdoj.gov
Dated:. / ;;). ,/ f "7 / 2- l
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