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

No. 17 - 1152 V Filed: July 24, 2019 UNPUBLISHED
CARMEN MURILLO ,

Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injur ies; Adhesive Capsulitis

Daniel R. Seidman, Seidman Margulis & F airman , LLP, Belleville, IL , for petitioner. Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION 1 

### Dorsey , Chief Special Master: On August 25, 2017 , p etitioner 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 injuries to her left shoulder, includ ing ad hesive capsulitis, as a result of a n October 18, 2015 infl uenza ( “ flu ” ) vaccination . Petition at 1 ; Stipulation , filed July 24, 2019 , at ¶ ¶ 1
- 4

. Petitioner further alleges that the vaccine was administered within the United States, that she suffered the residual effects of this inju ry for mor e than six months, and that ther e has been no prior award or settlement of a civil action for damages on her behalf as a resul t of her alleged vaccin e injury . Petit ion at 1
- 8 ; Stipulation at ¶¶ 3
- 5

. “ Respondent denies that petitioner sustained adhesive capsulitis or any other injury or her current condition as a result of

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 Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website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



### the vaccine, a nd further denies that petitioner sustained a T able injury. ” Stipulation at ¶ 6. Nevertheless, o n July 24, 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 term s stated in the attached Stipulation , the undersigned award s the following compensation: A lump sum of $ 35,000.00 in the form of a check payable to petitioner

. Stipulation at ¶ 8. This amount represents compensation for all items of damages that wo uld 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 STATES COURT OF FEDERAL. CLAIMS OFFICE OF SPECIAL MASTERS CARMEN MURILLO, Petitioner,
V. SECRETARY OF HEALTH AND HUMAN SER VICES, Respondent. ) ) ) ) ) ) ) ) } ) No. t7-t152V Chief Special Master Nora Beth Dorsey/SPU ECF

STIPULATION The parties hereby stipulate to the following matters: I. Carmen Murillo, 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 18, 2015. 3. The vaccine 

### was administered within the United States. 4. Petitioner alleges that she suffered injuries including adhesive capsulitis that were caused in fact by the flu vaccine. Alternatively, petitioner alleges that she sustained a Table injury resulting in adhesive capsulitis. Petitioner further alleges that she suffered the 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 on her behalf as a result of her alleged vaccine injury.6. Respondent denies that petitioner sustained adhesive capsulit is or any other injury or her current cor1dition 

### as a result of the vaccine, and further denies that pet i tioner sustained a Table 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 consistent whh the terms of this Stipulation, and after petit io ner has filed an election to receive compensation pursuant to 42 U.S

. C

. § 300aa-21(a)(I), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $35,000.00 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 S(a). 9. As soon as practicable after the entry of judgment on entitlement i n this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U

. S.C. § 300aa-2 t (a)(I ). and an application, the parties wiJI submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition

. I0

. Petitioner and her attorney represent that they have identified to respondent al I known
sources of payment 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 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 toparagraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa- l 5(i), subject to the availability o f sufficient statutory funds. 12. The parties an d their attorneys further agree and stipulate that, except for any award for attorney ' s fees and litigation costs, the money provided pursuant to this Stipulation will be used solely for the benefit of p etitioner 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 individua l capacity, and on behalf of her heir s, 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 ( includ ing 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. § 300a a - lO et seq., on account of, or in any way growing out of, any and all known o r unknown, suspected or unsuspected persona l i njuries to or death of petitioner resulting from, or alleged to have resulted from, the flu vaccination admini s tered on October 18 , 2015, as alleged by petitioner in a petition for vaccine compensation filed on or about August 25, 2017, in the United States Court of Federal Claims as petition No. I 7-1152V. 14. If petitioner shou l d die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on beha lf 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 th is Stipulation shall be vo id able at t he sole discretion of e i ther party. 16. This Stipulation expresses a full and complete nego tiated settlement of lia bil i ty and damages claimed unde r the National Childhood Vaccine Injury Act of 1986 , as amended, except
as otherwise noted in paragraph 9 above. T here is absolutely no agreement on the part of t h e parties hereto to make any payment or to do any act o r t hing other than is herein expressly sta ted and clearly agreed to. The parties furthe~ agree and understand that the award described in this Stipulation may reflect a compromise of the parties' respective po si tions as to liabi l ity and/or

amou nt 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 s ha ll not be construed as an admission by the United States or the Secretary of Health and Human Services th at the flu vaccine caused petitioner's adhesive capsulitis or any other i njury o r her current cond ition

. 18

. All ri g hts and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

I I I I 

### I I I I 

### END OF STIPULATIONI Respectfully 

### submitted,

ATTORNEY OF RECORD FOR PETJTlONER:

DAN !BL 

# R.Sfl!J>f.•1AN Seidman Margulis & Pairmlln, LLP 

### 110 W
. Main $treet Suite 110

. Belleville, II
.. 622.20 (618) 235• 7622



### AUTHORIZED 

### REPRESENTATIVE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES:



# WetAd Stt~~ 

# r;t_'l; TAMARA OVER.BY Aoting 

### Direetor, Diviaion of Jnjury Compensation Programs 

### Healthcare Sy&tems Bure11u Health Re.wurces and Scrviees Adminlatration 

### U

. S. Department of Health and Human Services 5600 r'ishers Lane Parklawn Building, Mail Stop 08N 146B 

### Rockville, MO 20857 AUTHORIZED REPRESENTATIVE 

### OF THE ATTORNEY GENtRAL :

' RJNE E
. 

### REEVES Deputy Director Torts Draneh 

### Civil Division U , S

. 

### Oeparbnent af 

### Justice P. 0. Box 146 

### Be,tjamln Franklin Station Washingt o n, D
. C

. 20044.0146


### A

ITORNEY OF RECORD FOR RESPONDENT:

# !~ Senior Tria l Counsel Torts Branch Civll Division U.S

. Department of Justice P
. O. 

### Box 146 

### Btnjamin Franklin Stntion Wash i ngto n, DC 20044-0146 (202) 616-051 S