# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-0442V UNPUBLISHED
ELLEN WHITAKER, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Chief Special Master Corcoran Filed: October 20, 2021 Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA) Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner. Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION 1 

### On April 15, 2020, Ellen Whitaker 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”) as a result of an influenza (“flu”) vaccine that was administered to her on October 15, 2018. Petition at 1; Stipulation, filed on October 19, 2021, at ¶¶ 2, 4. Petitioner further alleges that she received the vaccine in the United States, that she has 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 alleged condition. Petition at 1, 3-4; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner sustained a Table SIRVA within the timeframe set forth in the Table; and denies that the flu immunization caused or significantly aggravated [P]etitioner’s alleged shoulder injury and/or any other injury.” Stipulation at ¶ 6.

1 Because this unpublished Decision contains a reasonedexplanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 EGovernment 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2 

### Nevertheless, on October 19, 2021, 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 terms stated in the attached Stipulation, I award the following compensation: A lump sum of $50,000.00 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 Section 15(a). Id

. I approve 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/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.THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

ELLEN WHITAKER,Petitioner, V. SECRETARY OF HEALTH AND HUMAN SERVICES,Respondent. No. 20-442V ChiefSpecial Master Brian H. Corcoran ECF

STIPULATION The parties hereby stipulate to the following matters: l. Ellen Whitaker ("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 ofan 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 or about October 15, 2018, in her left deltoid. 3. The vaccine was administered within the United States. 4. Petitioner alleges that she sustained a left-sided shoulder injury related to vaccine administration ("SIRVA") within the time period set forth in the Table. She further alleges that she experienced residual effects ofthis injury for more than six months. 5. Petitioner represents that there has been no prior award or settlement ofa civil action for damages as a result ofher condition.6. Respondent denies that petitioner sustained a Table SIRVA within the timeframe set forth in the Table; and denies that the flu immunization caused or significantly aggravated petitioner's alleged shoulder injury and/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 ofthis Stipulation. 8. As soon as practicable after an entry of judgmentreflecting a decision consistent with the terms ofthis Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary ofHealth and Human Services will issue the following vaccine compensation payment: A lump sum of$50,000.00 in the form ofa checkpayable to petitioner. This amount represents all compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a) for injuries allegedly related to petitioner's receipt ofthe flu vaccine. 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 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 ofpayment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), including State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX ofthe Social Security Act (42 U.S.C. § 1396 et seq.)), or entities that provide health services on a pre-paid basis.

211. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 ofthis Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability ofsufficient 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 unreimbursable expenses, the money provided pursuant to this Stipulation will be used solely for the benefit ofpetitioner as contemplated by a strict construction of42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of42 U.S.C. § 300aa-l5(g) and (h). 13. 

### In return for the payments described inparagraphs 8 and 9, petitioner, in her individual capacity and on behalfofher heirs, executors, administrators, successors and/or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary ofHealth and Human Services from any and all actions or causes of action (including agreements,judgments, claims, damages, loss ofservices, expenses and all demands ofwhatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court ofFederal 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 injuries to or death of petitioner resulting from, oralleged to have resulted from, the flu vaccination administered on or about October 15, 2018, as alleged by petitioner in a petition for vaccine compensation filed on
or about April 15, 2020, in the United States Court ofFederal Claims as petition No. 20-442V. 14. Ifpetitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalfofeither orboth ofthe parties.

315. Ifthe special master fails to issue a decision in complete conformity with the terms ofthis Stipulation or ifthe Court ofFederal Claims fails to enterjudgment in conformity with a decision that is in complete conformity with the terms ofthis Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion ofeither party. 16. This Stipulation expresses a full and complete negotiated settlement ofliability 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 ofthe 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 ofthe parties' respective positions as to liability and/or amount ofdamages, and further, that a change in the nature ofthe injury or condition or in the items ofcompensation 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 ofHealth and Human Services that the flu vaccine caused petitioner's alleged shoulder injury and/or any other injury. 18. All rights and obligations ofpetitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.
I I I I I I I I I I I END OF STIPULATION

49/28/2021 12:37:45 Pl Ftom: To: 12158851644( 1/1)

Respectfully submitted, PEnTIONER:



### ATTORNEY OF RECORD FOR PETITIONER: 

# ~- MULLER BRAZIL 7JS Twining Road, Suite 208 Dresher, PA 19025 (21S) 88S-1655 

### leigh@mullerbrazil.com

AUTIIORIZED REPRFSENTATIVE OFTBE SECRETARY 

### OF HEALTH AND HUMAN SERVICES: 

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### A/J ,(W,~., TAMARA OVERBY ActingDirector, Division ofInjury

CompensationPrograms Health Systems Bureau HealthResources andServic:es

Adminisb'ation U.S. Department ofHealth

and Human Services 5600 Fishers Lano, 08N146B Rockville, MD 20857

Dated: 

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## s AUTHORIZED REPRESENTATIVE 

### OF' THE ATTORNEY GENERAL: 

# ~~\&O ~ HBATHERL. PEARLMAN Deputy Dilector Torts Branch Civil Division U.S. DepartmentofJustice P.O. Box.146 BeltjaminFranklin Station Washington, DC 20044-0146 

### ATTORNEY OFRECORD FOR RESPONDENT: t, .. .,..,....-v-.1::) 

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# p**~** RYAND. PYLES Senior Trial Attorney 

### Torts BJaDch Civil Division U.S.DepartmentofJustice P.O.Box 146 Benjamin Franklin Station Washington, DC 20044-0146 (202) 616-9847 ryan,12yles@usdqj.gov