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

No. 20 - 0085 V UNPUBLISHED
TAMATHA KELLY , Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran Filed: July 20, 2021 Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA) Paul R. Brazil, Muller Brazil, LLP, Dresher, PA , for petitioner. Voris Edward Johnson , U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1 

### On January 24, 2020 , Tamatha Kell y 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 right shoulder injuries related to vaccine administration ( “ SIRVA ” ) as a result of an influenza ( “ flu ” ) vaccine received on November 3, 2017 . Petition at 1 ; Stipulation , fil ed July 20, 2021 , at ¶¶ 2
- 4

. Petitioner further alleges that the vaccine was admin istered in the United States, she experienced the residual e ffects of her SIRVA for more than six months , and there has been no prior award or settlement of a civil action for damages as a resul t of her condition . Petit ion at 1 , 4 ; Stipulation at ¶¶ 3
- 5

. “Respondent denies that petitioner sustained a Table SIRVA within the Table timeframe, and denies that the flu vaccine in fact caused her alleged shoulder injury and residual 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 w hich 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
- 6 60, 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 July 20, 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 term s stated in the attached Stipulation , I award the following compensation: A lump sum of $ 57,500.00 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 Section 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 filin g of notice renouncing the right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS


### TAMATHA KELLY, ) ) ) ) ) ) ) ) ) ) ) 

### Petitioner, No. 20-85V (ECF) V. 

### Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
STIPULATION 

### The parties hereby stipulate to the following matters: l

. Tamatha Kelly ("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 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. § 100

. 3(a). 2. Petitioner received the flu vaccine on November 3, 2017. 3. The vaccine was administered within the United States. 4. Petitioner alleges that she sustained the first symptom or manifestation of onset of
a right Shoulder Injury 

### Related to Vaccine Administration ("SIRVA") within the time period set forth in 

### the Table. Petitioner further alleges that she experienced the residual effects ofher SIRVA 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 petitioner sustained a Table SJRVA within the Table timeframe, and denies that the flu vaccine in fact caused her alleged shoulder injury 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 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$57,500.00 in the form of a check payable to petitioner, Tamatha Kelly, which amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(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-2l(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 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-l 5(g), to the extent that payment bas been made or can reasonably be expected to be made under any 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 by 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-1 S(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, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner, as contemplated by a strict construction of42 U.S.C. § 300aa-lS(a) and (d), and subject to the conditions of42 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 Secretary of Health and Human Services and the United States of America 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-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, or alleged to have resulted from, the flu vaccine administered on November 3, 2017, as alleged by petitioner in a petition for vaccine compensation filed on or about January 24, 2020, in the United States Court ofFederal Claims as petition No. 20-85V. 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 ofthe parties. 15. If the special master fails to issue a decision in complete confonnity with the
terms of this Stipulation, or if the Court ofFederal Claims fails to enter judgment in confonnity
3with 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 s ole 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 a s 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 ofthe 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 right shoulder injury 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 I I 

### END OF STIPULATION

4Respectfully submitted , PETITIONER: 

### ~C>,,:rn\\,,-, \(,,\~

-

~MATHA KELLY
ATTORNEY OF RECORD FOR PETITIONER:

# ~~~ PAUL BRAZIL Muller Brazil, LLP 

### 715 Twining Road , Suite 208 Dresher, PA 19025 (215) 885-1655



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

## ~ 

# ~, of{Sc-,**~** 

# A/JM TAMARA OVERBY 

## Acting Director, Division of Injury 

## Compensation Programs (DICP) Healthcare Systems Bureau Health Resources and Services Administration U.S. Department of Health and Human Services 

## 5600 Fishers Lane, 08Nl 46B 

## Rockville, MD 20857


## Dated: 

# 01:lzohaz, ( AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL:



## ,A)_g 6;,t--fy 

# /\\J)2 -e**~~** HEATHER L. PEARLMAN Deputy Director 

### Torts Branch, Civil Divi s ion U
. S. Department of Justice P
. O. Box 146 Benjamin Franklin Station 

### Washington, DC 20044-0146


### ATTORNEY OF RECORD FOR RESPONDENT: 

# -



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# P-e 1 

# ur-----... VORIS E. JOHNSON, 

### JR. 

## Senior Trial Attorney Torts Branch 

## Civil 

## Division U.S. Department of Justice 

## P.O. Box 146 Benjamin 

## Franklin Station Washington, DC 20044-0146 

## Tel.: (202) 616-4136 Email: 

## voris.johnson@usdoj

. gov