# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18 - 1631 V UNPUBLISHED
CHERYL KRAEMER , Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Chief Special Master Corcoran Filed: March 17, 2020 Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA) Gary Alan Krochmal, Law Offices of Gary A. Krochmal, PLLC, Farmington Hills, MI , for petitioner. Gabrielle Manganiello Fielding , U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1 

### On October 23, 2018 , Cheryl Kraemer 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 ” ) caused by a n influenza ( “ flu ” ) vaccine administered on October 27 , 2016 . Petition at 1 ; Stipulation , filed March 17, 2020 , at ¶ ¶ 1
- 2

. Petitioner further alleges that the vaccin e was administered within the United States, that she experienced residual symptoms of the all eged injur y for more than six months, and that th ere has been no prior award or settlement of a civil action for damages as a result of her alleged inj uries . Petit ion at 7 ; Stipulation at ¶¶ 3
- 5

. “ Respondent denies that petition er sustained a SIRVA Table inj ury and denies that petitioner’s alleg ed shoulder

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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

### injury and its r esidual effects were cause d
- in
- fact by her flu vaccine. Respondent further denies that the flu vaccine caused petitioner any other injury or her current condition. ” Stipulation at ¶ 6. Nevertheless, o n March 17, 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 $ 52,418.01 ( comprised of $50, 000.00 for pain and suffering and $2,418.01 in past unreimbursed expense s) 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

CHERYL KRAEMER, Petitioner,
v. SECRETARY OF HEALTH 

### AND HUMAN SERVICES, Respondent. ) ) ) ) ) ) ) ) ) ) 

### ) No. 18-163IV Chief Special Master Corcoran ECF



# ______________ ) 

### STIPULATION The parties hereby stipulate to the following matters: 1. Petitioner, Cheryl Kraemer, 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 ("flu") vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a). 2. On October 27, 2016, petitioner received a flu vaccine in her right arm. 3. The vaccine was administered within the United States. 4. Petitioner alleges that she suffered a shoulder 

### injury related to vaccine administration ("SIRVA"), within 

### the time period set 

### forth in the Table, and that she experienced residual symptoms of the alleged injury 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 her alleged injuries.

16. Respondent denies that petitioner sustained a SIRVA Table injury and denies that petitioner's alleged shoulder injury and its residual effects were caused-in-fact by her flu vaccine. Respondent further denies that the flu vaccine caused petitioner any other injury or her
current condition. 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 tenns 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$52,418.0l, 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-15(a), including $50,000.00 for pain and suffering, and $2,418.01 in past unreimbursed expenses. 

### 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(aXl), 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 payment has been made or can reasonably be expected to be made under any State compensation programs, insurance policies, Fed~ra1 or 2

### 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 made pursuant to paragraph 8 of this Stipulation, and any amounts awarded pursuant to paragraph 

### 9 of 

### this Stipulation, will be made in 

### accordance with 

### 42 U.S.C. § 

### 300aa-l 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 unreimbursed expenses, 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 

### her individual capacity and on behalf of her 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, causes of action (including agreements.judgments, claims, damages, loss ofservices, 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-I O 

### 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 vaccine administered on October 27, 20 I 6, as alleged by petitioner in a petition for vaccine compensation filed on or about October 23, 2018, in the United States Court of Federal Claims as petition No. 18-1631 V.

314. 

### 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 tenns 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 Childhoo~ Vaccine Injury Act of I 986, 

### 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 the vaccine received by petitioner either caused or significantly aggravated petitioner's alleged 

### injury or any other injury. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. 

### END OF STIPULATION

4Respectfully submittedt 

### PETITIONER:

ATTORNEY OF RECORD FOR PETITIONER:

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 08Nl46B Rockville, MD 20857

Dated: 

## 3 \ 

# I 

# rl 9- 0 ';} O r



### 5 

### AUTHORIZED REPRESENTATIVE

~ YG ~ ~ - L - : ----=


### CATHARINE E
. REEVES Deputy Director Torts Branch Civil Division 

### P.O. Box 146 

### Benjamin Franklin Station Washington, DC 20044-0146


### ATTORNEY OF RECORD FOR RESPONDENT:

GABRIELLE M. FIELDING Assistant Director 

### Torts 

### Branch Civil Division 

### U.S

. Department of Justice 

### P.O. Box 146 

### Benjamin Franklin 

### Station Washington, DC 20044-0146 gabriellc.fielding@usdoj.gov 

### Tel: (202) 616-4359