# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS

No. 18 - 1654 V UNPUBLISHED
GARETH ACTON , Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran Filed: March 18, 2020 Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA) Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY , for petitioner. Voris Edward Johnson , U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1 

### On October 25, 2018 , Gareth Act on 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 he suffered a left shoulder injury related to vaccin e administration ( “ SIRVA ” ) as a result of an infl uenza ( “ flu ” ) vaccine received on December 8, 2017 . Petition at 1 ; Stipulation , filed March 18, 2020 , at ¶ ¶ 1
- 4

. Petitioner further alleges that the vaccine was administered in the United Sta tes, he experienced the residual effects of his inju ry for more than six months, and there has been no prior aw ard or settlement of a civil action for damages as a result of his con dition . Petit ion at 1, 6 ; Stipulation at ¶¶ 3
- 5

. “ Respondent denies that petitioner sustained a SIRVA Table inj ury, and further denies that the flu vaccine caused petitioner ’ s alleged le ft shoulder injuries and resi dual effects, or any other injury. ” Stipulation at ¶ 6.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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



### Nevertheless, o n March 18, 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 $ 85,000.00 in the form of a check payable to P etitioner

. Stipulation at ¶ 8. This amount represents compensat ion for all items of damages that wo uld be available under § 15 (a) , including pain and suffering and lost earnings

. 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
GARETH ACTON, ) ) ) ) ) ) ) ) ) ) ) Petitioner, No. 18-1654 V 

### (ECF) V. Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.


### STIPULATION The parties hereby stipulate to the following matters: I. Gareth Acton ("petitioner") filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l Oto -34 (the • ·vaccine Program"). The petition seeks compensation for injuries allegedly sustained following petitioner 's receipt of an 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 December 8, 2017. 3. The vaccine was administered within the United States. 4. Petitioner alleges that he sustained the first sy mptom 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 he experienced the residual e ffects of his SIRVA for more than six months. 5. Petitioner represents that there has been no pri or award or settlement of a civil action for damages as a result of his condition.6. Respondent denies that petitioner sustained a SIRVA Table injury, and further denies that the flu vaccine caused petitioner's alleged left shoulder injuries and residual effects,

or any other injury. 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 con s istent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2 I (a)( I), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $85,000.00 in the form of a check payable to petitioner , Gareth Acton, which amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-l 5(a), including pain and suffering and lost earnings. 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)(l), and an application , the parties will submit to further proceedings before the special master to award rea~onable attorneys· fees and costs incurred in proceeding upon this petition. I 0. Petitioner and his 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- I 5(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, i nsurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act, 42 U

. S.C. § 1396

2et seq.), or by 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-l 5(i), s ubject 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 li t igation costs, the money provided pursuant to this Stipulation will be used solely for the benefit of pet itio ner , 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-l 5(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in his individual capacity, and on behalf of his heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discha rge the Secretary of Hea lth and Human Services and the United States of America from any and all actions or causes of action (including agreements, judgments, claim s , 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 Pr ogra m , 42 U .S.C. 

### § 300aa- IO et seq., on account of. or in any way growing out of, any and all known or unknown, susp ected or unsuspected personal injuries to , or death of, petitioner resulting from, or alleged to have resulted from, the flu vaccine administered on December 8, 20 I7, as alleged by petitioner in a petition for vaccine compensation tiled on or about October 25, 2018, in the United States Court of Federal Claims as petition No. I 8-1654 V. 14. If petitioner sho uld die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of either o r both of the parties. 15. If the special master fails to issue a decision in complete confonnity with the
3terms of this Stipulation, or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete confonnity 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 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 of America or the Secretary of Health and Human Services that petitioner·s alleged left shoulder injuries and residual effects, or any other injury, were caused by the flu vaccine. 18

. All rights and obligations of petitioner hereunder shall apply equally to petitioner~ s heirs, successors and/or assigns.

I I I I I I I 

### I I I I END OF STIPULATION

4R esp e ct full y su bmit ted. PETITIONER:



### ATTORNEYOFRECOROFOR PETITIONER~

1 J Sayad, P .C. 

### 75 South B ro adway 4t

h Floor White 

### Plain s, NY I0601 ( 914) 729- 1110



### AUTHORIZED REPRESENTATIVE 

### OF THF. SECIU:TARY OF HEALTH AND RUMAi~ S.llRVICES: 

# wa.A.d**s~~** 

# tf 1.. TAMARA OVERBY 

### Acting Dir ec tor, Divi s ion of In jury Compensation Pro g ram s (Ol C P) Healthcare Systems Bureau U

. S. Department of Health and Human Servi ces 5600 Fishers Lane 

### Parklawn Building, Mail Stop 08N146B Rockvill e, MD 208.57


### Dated: 

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5 AUTHORIZED IU:PRESENT A TIVE 0 THE 

### ATTORNEY GENERI\.L:

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____ ,
ARlN E E. REEVES D epu t y D irec tor 

### T o 1ts Bran ch, C ivi l Divi1;ion U

. S. D epa rtm e nt of Justice P

. O. Box 146 H

c njamin Frank lin Station Washington, D C 20044-0146


### ATTORNEY OF RECORD FOR 

# v~ N I ~.1t-**~** 

# LL--- V O Rrs E. JOHNSON

. JR

. Senior Tr i al Attorney To rt s Rrnn ch Civil 

### Division U

. S. Depar tment of Justi ce P .O. Box 146 B enjamin Fra nk lin Stal 1 on Wn sh ington , OC' 20044-0146 (202) 616-4136