In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 17-1442V

Filed: April 22, 2019

UNPUBLISHED

BITA FOTUHI,

 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)

Paul D. Bekman, Bekman, Marder & Adkins, LLC, Baltimore, MD, for petitioner.

Lara Ann Englund, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

On October 5, 2017, petitioner 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 the influenza (“flu”) vaccine she received on 

October 8, 2014, caused her to develop a Shoulder Injury Related to Vaccine 

Administration (“SIRVA”) in her left shoulder. Petition at 1; Stipulation, filed April 18, 

2019, at ¶¶ 2-4. Petitioner further alleges that she experienced residual effects of this 

injury for more than six months. Petition at 3; Stipulation at ¶ 4. “Respondent denies

that the flu vaccine is the cause of petitioner's alleged SIRVA or any other injury or her 

current condition.” Stipulation at ¶ 6. 

 

1 The undersigned 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 Because this unpublished decision contains a reasoned explanation for the 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 subparagraph of 42 U.S.C. § 

300aa (2012).
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Nevertheless, on April 18, 2019, the parties filed the attached joint stipulation, 

stating that a decision should be entered awarding compensation. 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 terms stated in the attached Stipulation, the undersigned

awards the following compensation:

A lump sum of $131,962.33 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. 

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 ST ATES COURT OF FEDERAL CLAIMS 

OFFICE OF SPECIAL MASTERS 

BITA FOTUHI, 

Petitioner, 

V. 

SECRETARY OF 

HEALTH AND HUMAN SERVICES, 

Respondent. 

) 

) 

) 

) 

) No. 17-1442V 

) Chief Special Master Nora Beth Dorsey 

) 

) 

) 

) 

STIPULATION 

The parties hereby stipulate to the following matters: 

I. Petitioner Bita Fotuhi ("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 injuries allegedly related to petitioner's receipt 

of the influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the 

''Table"), 42 C.F.R. § I 00.3 (a). 

2. Petitioner received a flu vaccine on or about October 8, 2014. 

3. The vaccine was administered within the United States. 

4. Petitioner alleges that the flu vaccine caused her to develop a Shoulder Injury Related 

to Vaccine Administration ("SIRVA") in her left shoulder and that she 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 as a result of her condition. 

6. Respondent denies that the flu vaccine is the cause of petitioner's alleged SIRVA or 

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 terms 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$131,962.33 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-2 l (a)( I), 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 they have identified to respondent all 

known sources of payment for items or services for which the Program is not primarily liable 

under 42 U.S.C. § 300aa-I 5(g), including 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 entities that provide health services on a pre-paid basis. 

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. 

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12. The parties and their attorneys further agree and stipulate that, except for any award 

for attorneys' fees and litigation costs and past unreimbursable 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-l S(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 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-l 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 flu vaccination administered on October 8, 20 I 4, as 

alleged by petitioner in a petition for vaccine compensation filed on or about October 5, 2017, in 

the United States Court of Federal Claims as petition No. 17-1442Y. 

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. 

3 
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 patties 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 flu vaccine caused petitioner's alleged SIR YA 

or any other injury or her current condition. 

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, 

PETfTIONER: 

nr1·A FOTUJ II 

ATTORNEY OF RECORD FOR 

PETITIONER: 

~ ~ 7)~ 

PAUL D. f3EKMAN 

BEK:vl/\N, M/\IWF.R & /\OKINS, LLC 

130 West Pratt Streel 

Suit~ 450 

Baltimor<.:, Maryland 21201 

(4 I 0) '):\9-6633 

AUTHORIZED REPRESENl Arrvr. 

OF THE SECRETARY OF HEAl rH 

/\ND J ll lMAN SERVICES: 

uJ~d :s$~U(., cf~ 

Ni\R/~ YAN NAIR, M.D. 

Director, Division of 

Injury Compensation Programs 

l lcalthcare Systems I3urcau 

U.S. Department ol'Tlcalth 

a11cl Human Services 

5600 Fishers Lane 

Parklawn Building, Mail Slop 08Nl46B 

Rock ville, MD 20857 

Dated: __ '-i / l "'is /1 '5 ...:.,___;__; ____ _ 

/\UT! IOR.11/.ED REPRFSENTATIVE 

OF fl IE Ar l"OR\:E\' GENERAL: 

[l __ 

'A 'II/\RlNE E. REEVES 

Deputy Director 

rorls Branch 

Civi l Division 

U.S. Department of Justice 

P.O. Box 146 

Benjamin Frnnklin Station 

Washington, DC 20044-0146 

ATTORNEY OF RECORD FOR 

RESPONDENT: 

~ -ci.A ~ C I /\l~A A. EN(iLUND '-" 

Trial /\Horney 

Tort<; Branch 

Civil Division 

lJ.S. Department or Justice 

P.O. Box 146 

1.knjarnin Franklin Station 

Washington, DC 20044-0J.16 

(202) 307-3013