# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18 - 1269 V UNPUBLISHED
RICHARD WEATHERLY , Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Chief Special Master Corcoran Filed: June 18, 2020 , Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA) Anne Carrion Toale, Maglio Christopher & Toale, PA, Sarasota, FL , for petitioner. Linda Sara Renzi , U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION 1 

### On August 22, 20 18 , Richard Weatherly filed a 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 Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of his Octo ber 17, 2016 influneza ( “ flu ” ) vaccination . Petition at ¶¶ 1, 8 ; Stipulation , issued at June 16, 2020 , ¶¶ 2, 4

. Petitioner further alleges that the vaccine was administered within the United States, that he suffered the residual effects of his injury for more than six months, and that there has been no prior award or settlement of a civil action on his behalf as a result of his injury. Stipulation at ¶¶ 3
- 5; see Petition at ¶¶1, 10, 1 3
- 14 . “R espondent denies that petitioner sustained a SIRVA Table injury; and denies that his current condition is a sequelae o f a vaccine
- related injury.” Stipulation at ¶ 6.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 o f 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 “§” references to the Vaccine Act will be to the pertinent subpara graph of 42 U.S.C. § 300aa (2012 ).2 

### Nevertheless, o n June 16, 2020 , 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 term s stated in the attached Stipulation , I award the following compensation: A lump sum of $ 72,500.00 in the form of a check payable to P etitioner

. Stipulation at ¶ 8. This amount represents compensation for all items of damages that wo uld be available under § 15 (a). Id

. I approve the requested amount for P etitioner’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.IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

RICHARD WEATHERLY, Petitioner,
V. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. ) ) ) ) ) ) ) ) ) ) ) No

. I 8- I 269V Chief Special Master Brian H. Corcoran

STIPULATION The parties hereby stipulate to the following matters: I. Richard Weatherly, 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 influenza vaccine ("flu") , which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R

. § I 00.3(a). 2. Petitioner received a flu vaccination on or about October 17, 2016. 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 experienced the residual effects of this condition 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 his condition. 6. Respondent denies that petitioner sustained a SIRVA Table 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 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)(l ), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $72,500.00 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- l 5(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)( 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. 10. Petitioner and his 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 entities that provide health services on a pre-paid basis. 11. Payments 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. § 300aal 5(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, and past unreimbursable expenses, the money provided 2pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U .S.C. § 300aa- I 5(a) and (d). and subject to the conditions of 42 U .S.C. § 300aa- I 5(g) and (h). 13. In return for the payments described in paragraphs 8 and 9. petitioner, in his individual capacity, and on behalf of his heirs, executors, administrators. successors and / or assigns. docs 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, the flu vaccination administered on or about October 17, 2016. as alleged by petitioner in a petition for vaccine compensation filed on
or about August 22, 2018. in the United States Court of Federal Claims as petition No. l 8- l 269V. 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.

316. This Stipulation expresses a ful I and complete negotiated settlement of liabilit y and damages claimed under the N ational Childhood Vaccine lnju1") Act of 1986. except as other w ise noted in paragraph 9 above. There is absolutel y no agreement on the part of the parties hereto to make any pa y ment or to do an y act or thing other than i s herein expressl y stated and clearl y agreed to. The parties further agree and understand that the a w ard described in this Stipulation

ma y 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 Secretar y of I lcalth and Human Services that the flu vaccine caused petitioner's alleged shoulder injur y . or any other injury or his current condition. 18. All rights and obligations of petitioner hereunder shall apply equall y to petitioner·s heirs. executors. administrators. successors, and/or assigns.

I I I END OF STIPULATION

4

### Respectfully submitted,

ATTORNEY OF RECORD FOR PE TIONER: I

----- -

# ~ · +.;,-......:~~~----- TOALE, ESQ. aglio Christopher & Toale, P.A. 1605 Main St. Suite 710 Sarasota, FL 34236

AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES:



### TAMARA OVERBY Acting Director, Division of Injury Compensation Programs Healthcare Systems Bureau U.S. Department of Health and Human Services 5600 Fishers Lane Parklawn Building, Mail Stop 08N146B Rockville, MD 20857

Dated:

5 AUTHORIZED REPRESENTATIVE 0 THE ATTORNEY GENERAL: 

# -- ~~**~** 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:



# .**~~s~** 

# ii-, ~ 

# cz. --- LINDA S. RENZI Senior Trial Counsel Torts Branch Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 Tel: (202) 616-4133