# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-592V Filed: June 1, 2018 UNPUBLISHED

JANELLE PEACOCK, 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)

Amber Diane Wilson, Maglio Christopher & Toale, PA, Wash ington, DC, for petitioner. Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON J OINT STIPULATION 1 Dorsey , Chief Special Master: On May 2, 2017, petitioner filed a pet ition 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 suffe red a shoulder injury related to vaccine administration (“SIRVA”) after receiving an influenza (“flu”) vaccination on October 1, 2015. Petition at 1; Stipulation, filed May 31, 2018, at ¶ 1. Petitioner further alleges that the vaccination was administer ed within the United States, that she experienced the residual effects of her right shoulder injury for more than six months , and that there has been no prior award or settlement of a civil ac tion for damages on her behalf as a result of her condition. Petition at 1-3; Stipulation at ¶¶ 3-5. “Respon dent denies that the influenza vaccine caused petitioner to suffer a right shoulder injury, or any injury.” Stipulation at ¶ 6.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Cour t of Federal Claims'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 Nevertheless, on May 31, 2018, the parties filed the attached joint stipulation, stating that a decision s hould be entered awarding compens ation. 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 terms stated in the attached Stipulation, the undersigned awards the following compensation: A lump sum of $95,228.00 in the form of a check payable to petitioner

. Stipulation at ¶ 8. Th is amount represents compens ation for all items of damages that would be availabl e 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

____________________________________ ) JANELLE PEACOCK, ) ) Petitioner, ) ) No. 17-592V v. ) Chief Special Master Dorsey ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ____________________________________)

STIPULATION The parties hereby stipulate to the following matters: 1. Petitioner filed a petition for vaccine comp ensation 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 vaccine,

which vaccine is contained in the Vaccine In jury Table (the “Table”), 42 C.F.R. § 100.3(a). 2. Petitioner received her influenza immunization on October 1, 2015.

3. The vaccine was administered within the United States. 4. Petitioner alleges that she suffered a right s houlder injury as a result of the influenza vaccine. Petitioner further alleges that she experi enced the residual effects of her right shoulder 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 condition. 6. Respondent denies that the influenza va ccine caused petitioner to suffer a right shoulder injury, or any other injury.2 7. Maintaining their above-stated positions, th e parties nevertheless now agree that the

issues between them shall be settled and that a decision should be entered awarding the compensation described in para graph 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 petitione r has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secret ary of Health and Human Services will issue a lump sum payment of $95,228.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that w ould 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 prope r and timely election to recei ve compensation pursuant to 42 U.S.C. § 300aa-21(a)(1), 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-15(g), to the extent that payment has been made or can reasonably be expected to be made under any State compen sation programs, insuran ce 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. 11. Payment made pursuant to paragra ph 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 availability of suff icient statutory funds.3 12. The parties and their attorneys further ag ree and stipulate that, except for any award for attorneys’ fees, 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). 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 releas e, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damage s, loss of services, ex penses 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 Fede ral 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 influenza vaccination administered on October 1, 2015, as alleged by petitioner in a petition for v accine compensation filed on or about May 2, 2017, in the United States Court of Fe deral Claims as petition No. 17-592V. 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 of the parties. 15. If the special master fails to issue a d ecision 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 th e terms of this Stipula tion, then the parties’ settlement and this Stipulation shall be voidable at the sole discretion of either party.4 16. This Stipulation expresses a full and co mplete negotiated settle ment of liability and damages claimed under the National Childhood Vacci ne Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. Ther e is absolutely no agreement on the part of the parties hereto to make any paymen t or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agre e 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 or the Secretary of Health and Human Services that the influenza vaccine caused petitioner’s alleged right shoulder injury, or any other injury. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns.

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