# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS
No. 16-1555V Filed: March 5, 2018
UNPUBLISHED

LINDA REES,

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)

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner. Lara Ann Englund, U.S. D epartment of Justice, Washington, DC, for respondent.

DECISION ON J OINT STIPULATION 1

Dorsey , Chief Special Master:

On November 21, 2016, Linda Rees (“petitioner”) filed a petition for compensation under the National Vaccine Inju ry Compensation Program, 42 U.S.C. §300aa-10, et seq.

, 2 (the “Vaccine Act”). Petitioner alleges that she suffered left shoulder injuries as a result of an influenz a (“flu”) vaccine she received on December 2, 2015. Petition at 1; Stipulatio n, filed March 5, 2018, at ¶ 4. Petitioner further alleges that she experienced the residual effects of these injuries for more than six months. Petition at 3; Stipulation at ¶ 4. “Respondent denies that t he flu vaccine is the cause of petitioner’s shoulder injury or any other injury or her current condition.” Stipulation at ¶
6.

Nevertheless, on March 5, 2018, the parties filed the attached joint stipulation, stating that a decision s hould be entered awarding compens ation. The undersigned

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Cour t of Federal Claims'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). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other inform ation, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, t he undersigned agrees that the identified material fits within this definition, the undersigned 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 Ac t will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2 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. A lump sum of $3,243.95 in the form of a check payable to petitioner, for past unreimbursable expenses; and

b. A lump sum of $97,500.00, in the form of a check payable to petitioner, for all remaining damages.

Stipulation at ¶ 8. Thes e amounts represents compensati on for all items of damages
that would be available under 42 U.S.C. § 300aa-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 Append ix B, the clerk of the court is directed to enter judgm ent 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 c an 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

LINDA REES, ) ) Petitioner, ) )

v. ) No. 16

- 1555 V ) Chief Special Master Nora Beth Dorsey

SECRETARY OF ) HEALTH AND HUMAN SERVICES, ) ) Respondent. ) )

STIPULATION

The parties hereby stipulate to the following matters:

1. P etitioner Linda Rees (“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 ”) v accine , 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 December 2 , 201 5

.

3. The vaccine w as administered within the United States.

4. Petitioner allege s th at the flu vaccine caused her to develop left shoulder injuries and

that s he experienced residual effects of th e s e injur ies for more than six months.

5. Petitioner represent s that there has been no prior award or settlement of a civil action

for damages as a result of h er condition.

6. Respondent denies that the flu vaccine is the cause of petitioner’s shoulder injury or

any other injury or h er current condition

.2 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 pr acticable after an entry of judgment reflecting a decision consistent with

the terms of this Stipulation, and after petitioner ha s filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa

- 21(a)(1), t he Secretary of Health and Human Services will issue

the following vaccine compensation payment s for all damages that would be available under 42

U.S.C. §300aa

- 15(a):

a. A lump sum of $ 3 ,243.95 , in the form of a check payable to petitioner

, for past

unreim bursable expenses ; and

b. A lump sum of $ 97,500.00 , in the form of a check payable to petitioner , for all remaining damages.

9. As soon as pra cticable 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)(1), and an application, the parties will submit to further procee dings before

the special master to award reasonable attorneys’ fees and costs incurred in proceeding upon this

petition.

10

. Petitioner and h er 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

- 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.3 1 1

. 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 availabilit y of sufficient statutory funds.

1 2

. 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

- 15(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa

- 15(g) and (h).

1 3

. In return for the payments described in paragraphs 8 and 9, petitioner

, in h er

individual capacity, and on behalf of h er heirs, executors, administrators, successors or assigns,

does forever irrevocably and unconditionally release, acquit and discharge the United S tates 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 b een 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 unsuspecte d personal injuries to or death of petitioner resulting

from, or alleged to have resulted from, the flu v accination administered on December 2 , 2015

, as

alleged by petitioner in a petition for vaccine compensation filed on or about November 21,

2016 , in the United States Court of Federal Claims as petition No. 1 6

- 15 55V

.

1 4 . 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.4 1 5 . If the sp ecial 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.

1 6 . 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 par ties 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.

1 7 . 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 shoulder

injury or any other injury or h er current condition.

1 8 . All right s and obligations of petitioner hereunder shall apply equally to petitioner’ s

heirs, executors, administrators, successors, and/or assigns

.

END OF STIPULATION

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