# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17

- 0229 V Filed: March 23, 2018 UNPUBLISHED

KESHA PHELPS

,
Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA) ; Parsonage Turner Syndrome

John Robert Howie, Howie Law, PC, Dallas, TX , for petitioner. Justine Elizabeth Walters , U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION 1

Dorsey

, Chief Special Master:

On February 16, 2017

, p etitioner 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 she suffered from Parsonage Turner Syndrome and a shoulder injury related to vaccine administration ( “ SIRVA ”) as a result of a flu vaccination received on October 23, 2015 . Petition at 1 ; Stipulation , filed March 23, 2018

, at ¶ 4. Petitioner further alleges that she received the vaccine in the United States, she suffered the effects of the injury for more than six months, and there has been no prior award or settlement of a civil action for damages as a result of h er cond ition . Petit ion at 1, 7 ; Stipulation at ¶¶ 2, 5

. “ Respondent denies that the influenza immunization caused petitioner ’ s shoulder injury, Parsonage Turner Syndrome, or any other injury or her current condition. ” Stipulation at ¶ 6.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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). 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, the undersigned agrees that the identified material fits within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012 ).2 Nevertheless, o n March 23, 2018, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

Pursuant to the term s stated in the attached Stipulation

, the undersigned award s the following compensation:

A lump sum of $7 0,000.00 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 42 U.S.C. § 300aa

- 15(a). Id

.
The undersigned approves 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/Nora Beth Dorsey Nora Beth Dorsey 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.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

)
K ESHA PHELPS

, ) ) Petitioner, ) ) No. 1 7

- 229 V

v. ) Chief Special Master Dorsey ) ECF SECRETARY OF HEALTH AND ) HUMAN SE RVICES, ) ) 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 (t he “Vaccine Program”). The petition

seeks compensation for injuries allegedly related to petitioner’s receipt of the influenza vaccine,

which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).

2. Petitioner received an influenza immunization on O ctober 23, 2015

.

3. The vaccine w as administered within the United States.

4. Petitioner alleges that s he suffered a shoulder injury and Parsonage Turner Syndrome

as a result of receiving the influenza vaccine

.
5. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on her behalf as a result of her condition.

6. Respondent denies that the influenza immunization caused petitioner’s should er

injury , Parsonage Turner Syndrome, or any other injury or her current condition.- 2

- 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 describe d 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. § 30 0aa

- 21(a)(1), the Secretary of Health and Human Services will issue a

lump sum payment of $70 ,00 0 .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 rece ive compensation pursuant to

42 U.S.C. § 300aa

- 21(a)(1), and an application, t he 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 compensation to be provided pursuant to

this S tipulation 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 poli cies, 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 and any amounts a warde d 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.- 3

- 12

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

for attorneys’ fees

, litigation costs , a nd 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 su bject 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, succes sors 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 a ll 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 an y 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 influenza vaccination administered on or about

October 23, 2015 , as alleged by pe titioner in a petition for vaccine compensation filed on or

about F e bruary 16, 2017 , in the United States Court of Federal C laims as petition No. 1 7

- 229 V

.

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.- 4

- 16 . This Stipulation expresses a full and complete negotiated settleme nt 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 ac t 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 da mages, 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 influenza vaccine caused petitioner’s shoulder

injury , Parsona g e T u rner Syndrome, or any other injury or her current condition.

18 . All right s and obligations of petitioner hereunder shall apply equally to petiti oner ’s

heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

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