# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 1575 V

Filed: March 7, 2019

UNPUBLISHED

KATHLEEN SMITH

,

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)

Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL , for petitioner.

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

DECISION ON JOINT STIPULATION 1

Dorsey

, Chief Special Master:

On October 20, 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 a shoulder injury related to vaccine administration ( “ SIRVA ” ) after an influenza ( “ flu ” ) vaccination administered on October 5, 2016 . Petition at 1, 3 ; Stipulation , filed March 7, 2019

, at ¶ ¶ 2, 4

. Petitioner further alleges that she received the vaccine in the United S t ates, that she experienced the

residual effects of her injury for more than six months, and that there has been no prior award or settlement of a civil action for damages as a result of her condition . Petit ion at 1, 3

- 4 ; Stipulation at ¶¶ 3

- 5

. “ Respondent denies that the flu vaccine caused petitioner ’ s alleged SIRVA and residual e ffects, or any other injury. ” Stipulation at ¶ 6.

1 The un dersigned intends 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 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. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims'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 March 7, 2019 , the parties filed the attached joint stipulation, stating that a decision should be entered awarding com pensation. 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 $ 85,000.00 in the form of a check payable to petitioner

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

__________________________________________ )
KATHLEEN SMITH, )
)
Petitioner, )
) No. 17

- 1575V (ECF)

v. ) Chief Special Master Dorsey
)

SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
) Respondent. )
__________________________________________)

STIPULATION

The parties hereby stipulate to the following matters:

1. Kathleen Smith (“petitioner”) filed a petitio n 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 5, 2016

.

3. The vaccine was administered within the United States.

4. Petitioner alleges that s he subs equently suffered a Shoulder Injury Related to

Vaccine Administration (“SIRVA”)

, which petitioner alleges was caused by her receipt of the flu

vaccine. Petitioner further alleges that s he experienced the residual effects of her injury 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 the flu vaccine caused petitioner ’s alleged SIRVA and

residual effects , or any other injury

.

7. Maintaining their above

- stated positions, the parties nevertheless now agree that

the issu es 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 Sti pulation, 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 following vaccine compensation payment:

A lump sum of $ 8 5 ,000.00 in the form of a che ck payable to petitioner

, 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 bot h 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 her 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 p ayment 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 t hat provide health services on a pre

- paid basis.

11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to3 paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa

- 15(i), subject

to the availability of sufficien t 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 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 (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 Fe deral 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 inju ries to, or death of,

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

October 5, 2016

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

October 20 , 2017 , in the United States Court of F ederal Cla ims as petition No. 17

- 1 5 75 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’4 settlement and this Stipulation shall be voidable at th e sole discretion of either party.

16. This 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 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 m ay 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 agree ment.

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 SIRVA and

residual effects, or any other injury , were caused

- in

- fact by the flu vaccine.

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

petitioner’s heirs, successors and/or assigns.

END OF STIPULATION

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