# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17-0790V Filed: October 16, 2018 UNPUBLISHED

ANNA BALLARD,

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)

Ronald Craig Homer, C onway, Homer, P.C., Bost on, MA, for petitioner. Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON J OINT STIPULATION 1

Dorsey , Chief Special Master:

On June 13, 2017, Anna Ballard (“petiti oner”) filed a petition for compensation under the National Vaccine Injury Com pensation Program, 42 U.S.C. §300aa-10, et seq.
, 2 (the “Vaccine Act”). Petitioner alleges t hat she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a re sult of an influenza (“flu”) vaccine she received to her left shoulder on October 28, 2015. Petition at 1; Stipulation, filed October 16, 2018, at ¶ 4. Peti tioner further alleges that s he suffered the residual effects of her injury for more than six months after the administration of the vaccine. Petition at 13; Stipulation at ¶ 4. “Respondent denies that the fl u vaccine caused petitioner’s alleged SIRVA and residual effect s, or any other injury.” Stipulation at ¶ 6.

Nevertheless, on October 16, 2018, the parties filed the attached joint stipulation, stating that a decision s hould be entered awarding compens ation. The undersigned

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Cour t of Federal Claims'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 inform ation, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, t he 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 Ac t will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2 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 terms stated in the attached Stipulation, the undersigned awards the following compensation:

(a) A lump sum of $79,000.00 in the form of a check payable to petitioner

, Anna Ballard , which amount represents compens ation for all damages that would be available under 42 U.S.C. § 300aa-15(a); and,

(b) A lump sum payment of $102.74, representing compensation for satisfaction of a State of Georgia Medicaid lien, payable jointly to petitioner and:

Georgia Dept. of Community Health

900 Circle 75 Pkwy SE, Suite 650 Atlanta, GA 30339 Reference: Anna Ballard, Case No. 183959/0000281603

Petitioner agrees to endorse this payment to the Georgia Depar tment of Community Health. Stipulation at ¶ 8. These amounts represents co mpensation for all items of damages that would be availabl e 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 Append ix B, the clerk of the court is directed to enter judgm ent 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 c an 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

__________________________________________ ) ANNA BALLARD, ) ) Petitioner, ) ) No. 17

- 790V (ECF)

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

STIPULATION

The parties hereby stipulate to the following matters:

1. Anna Ballard (“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 injurie s allegedly sustained following

petitioner ’s re ceipt of the 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 in her left deltoid on October 28, 2015

.

3. The vaccine was administered within the United States.

4. Petitioner a lleges that she subsequently 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 she experienced the residual effects of h er 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 s :

a. A lump sum of $ 79 ,000.00 in the form o f a che ck payable to petitioner

, Anna Ballard, which amount represents compensation for all damages that would be availabl e und er 42 U.S.C. § 300aa

- 15(a); and,

b. A lump sum payment of $ 102.74 , representing compensation for satisfaction of a State of Georg ia Medicaid lien, payable jointly to petitioner and:

Georgia Dept. of Community Health 900 Circle 75 Pkwy SE, Suite 650 Atlanta, GA 30339 Reference: Anna Ballard, Case No. 183959/0000281603

Petitioner agrees to endorse this payment to the Georgia Department of Community Health.

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 appl ication, 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 h er attorney represent that compensation to be provided pursuant to3 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, insur ance 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.

11. Payment s made pursuant to paragraph 8 and any amount s 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 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 o f 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 self, 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 unknown, suspected or unsuspected personal inju ries to, or death of,

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

October 28, 2015

, as alleged by petitioner in a petition for vaccine compensatio n filed on or4 about June 13 , 2017 , in the United States Court of F ederal Cla ims as petition No. 17

- 790 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.

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 th e

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’ resp ective 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 con strued 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 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

/ / /