In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 18-1605V

UNPUBLISHED

JIMMIE L. FOSTER,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Chief Special Master Corcoran 

Filed: June 10, 2020

Special Processing Unit (SPU); Joint 

Stipulation on Damages; Influenza 

(Flu) Vaccine; Shoulder Injury 

Related to Vaccine Administration 

(SIRVA)

Philip James Roth, Jr., Marshall, Roth & Gregory, P.C., Asheville, NC, for petitioner.

Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1

On October 17, 2018, Jimmie L. Foster 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 October 19, 2015 influneza (“flu”) vaccination. 

Petition at 1; Stipulation, filed June 9, 2020, at ¶¶ 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, 16-17. “Respondent denies that petitioner sustained a SIRVA 

Table injury; denies that the flu vaccine caused petitioner’s alleged shoulder injuries, or 

any other injury; and denies injuries, or any other injury; and denies that his current 

condition is a sequelae of 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 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am 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 EGovernment 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 

300aa (2012).
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Nevertheless, on June 9, 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 terms stated in the attached Stipulation, I award the following 

compensation:

A lump sum of $38,000.00 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 § 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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS 

OFFICE OF SPECIAL MASTERS 

************************************* 

JIMMIE L. FOSTER, * 

* 

Petitioner, * No. 18-1605V 

* Chief Special Master Corcoran 

V. * 

* 

SECRETARY OF HEALTH AND * 

HUMAN SERVICES, * 

* 

Respondent. * 

************************************* 

STIPULATION 

The parties hereby stipulate to the following matters: 

I. Petitioner filed a petition for vaccine compensation under the National Vaccine 

Injury Compensation Program, 42 U.S.C. § 300aa-l Oto 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 immunization on October 19, 2015. 

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. Alternatively, petitioner 

alleges that his shoulder pain was caused-in-fact by a flu vaccination. 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. 
6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the 

flu vaccine caused 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 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: 

A lump sum of $38,000.00 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-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-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. 

I 0. 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. 

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11. Payment 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 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 

individual 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 flu vaccination administered on October 19, 2015, as 

alleged by petitioner in a petition for vaccine compensation filed on or about October 17, 2018, 

in the United States Court of Federal Claims as petition No. 18-1605V. 

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 
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 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 petitioner sustained a SIRVA Table injury; that the 

flu vaccine caused petitioner's alleged shoulder injuries, or any other injury; 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. 

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END OF STIPULATION 

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Respectfully submitted, 

PETITIONER: 

ATTORNEYOF . 

PETITI.~ - "" 

Marshall, Roth & Gregory, PC 

P.O. Box 769 

Asheville, NC 28802 

(828) 281-2100 

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 

5600 Fishers Lane 

Parklawn Building, Mail Stop 08N 146B 

Rockville, MD 20857 

Dated: Li f, /J.A 

5 

AUTHORIZED REPRESENTATIVE 

~ 

OF THE ATTORNEY GENERAL: 

[_c ~ EE. REEVES 

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: . 

~It~~ L ____ _ 

Senior Trial Attorney 

Torts Branch 

Civil Division 

U.S. Department of Justice 

P.O. Box 146 

Benjamin Franklin Station 

Washington, DC 20044-0146 

(202) 616-4181