# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18

- 1320 V UNPUBLISHED

DEBORAH SCHOR

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: November 7, 2019

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

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC , for petitioner.

Voris Edward Johnson , U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION 1

On August 28, 2018

, Deborah Schor 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 a shoulder injury related to vaccine administration ( “ SIRVA ” ) meeting the definition of a Table SIRVA after rec ei ving an influenza vaccination on October 10, 2017 . Petition at 1, ¶¶ 1, 10 ; Stipulation , filed Nov. 7, 2019

, at ¶ ¶ 1

- 2, 4

. Petitioner further alleges that she received the influenza vaccination in the United States, that she suffered the residual effects of her injuries for more than six months, and that neither she nor any other party has filed a civil action or received compensation for her injuries, alleged as vaccine caused

. Petit ion at ¶¶ 1, 10

- 11 ; Stipulation at ¶¶ 3

- 5

. “ Respondent denies that petitioner su stained a Table SIRVA within t he Ta ble timefram e, and denies that the vaccine caused her alleged shoulder injury and residua l effects, or any other injury. ” Stipulation at ¶ 6.

1 I intend to post this decision on the United States Court of Federal Claims' website. 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 invas ion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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)

.

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 November 7, 2019 , 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

, the I award the following compensation:

A lump sum of $ 72,250.00 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

__________________________________________ ) DEBORAH SCHOR, ) ) Petitioner, ) ) No. 18

- 1320V (ECF)

v. ) Chief Special Master Corcoran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) __________________________________________)

STIPULATION

The parties hereby stipulate to the following matters:

1. Deborah Schor (“petitioner”) filed a pe tition 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 injurie s allegedly sustained following

petitioner ’s re ceipt 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 on October 10, 2017

.

3. The vaccine was administered within the United States.

4. Petitioner alleges that s h e sustained the first symptom or manifestation of onset of

a left Shoulder Injury Related to Vaccine Administration (“SIRVA”) within the time period set

forth in the Table

. Petitioner further alleges that s he experienced th e residual effects of her

SIRVA for more than six months.

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

actio n for damages as a result of her condition.2 6

. Respondent denies that petitioner sustained a Table SIRVA within the Table

timeframe, and denies that the vaccine caused her alleged shoulder injury and residual effects, or

any other injury.

7. Maintaining th eir 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 e ntry 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 follo wing vaccine compensation payment:

A lump sum of $ 72,2 5 0.00 in the form of a che ck payable to petitioner, Deborah Schor

, which amount represents compensation for all damages that would be availabl e und er 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 receive compensation pursuant to

42 U.S.C. § 300aa

- 21(a)(1), and an application, the parties will submit to further proceedings

bef ore 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 Stipulation is not for any items or services for wh ich 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 (o ther 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.3 11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to

paragraph 9 of this Stipulation will b e 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 p rovided pursuant to this Stipulation

will be used sole ly 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 her

individual capacity

, and on behalf of her heirs, executors, administrators, successors or assigns,

does forever irrevocably and unconditionally release, acquit and discharge the Secretary of

Health and Human Services and the United States of America from any and all actions or causes

of action (i ncluding 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 I njury

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 un known, suspected or unsuspected personal inju ries to, or death of,

petitioner resulting from, or allege d to have resulted from, th e flu vaccine administered on

October 10, 2017

, as alleged by petitioner in a petition for vaccine compensatio n filed on or

about August 28, 2018 , in the United States Court of F ederal Cla ims as petition No. 18

- 1320 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 conformity4 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. Thi s Stipulation expresses a full and complete negotiated settlement of liability

and damages claimed under the National Vaccine Injury Act of 1986, as amended , except as

otherwise noted in paragraph 9 above . There is absolutely no agreement on the part of t he

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’ res pective 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 of

America or the Secretary of Health an d Human Services that petitioner ’s alleged left SIRVA and

residual effects, or any other injury , were caused by the flu vaccine.

18. All rights and obligations of petit ioner hereunder shall apply equally to

petitioner’s heirs, successors and/or assigns.

END OF STIPULATION

/ / / / / / / / / / / / /Respectfully submitted,
I PETITIONER:


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A ITORNEY OF RECORD FOR 

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___ __,

i Law Offices of Leah V. Durant, PLLC

I 1717 K Street, NW
Suite 900 1 Washingtpn, DC 20006 (202) 77 7 -9200

I

I i I AUTHORIZED REPRESENTATIVE OF THE j SECRETARY OF HEALTH AND HUMAN SERVICES: 

# I 

# Datri- /J.**~** tor TAMARA OVERBY Acting Dfrector, Division oflnjury Compensation Programs (DICP) Healthcare Systems Burea.u

I U.S. Department of Health and H~man · Services 5600 Fishers Lane Parklawn ' Building, Mail Stop 08N146B Rockville, MD 20857


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Dated: 

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5 AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL: 

# c oSH-1ar~ e_ tzeev-RA



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CATHARINE E. 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:

Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 (202) 616-4136