In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 17-750V

Filed: February 13, 2019

UNPUBLISHED

PENNY LYNN BURKE,

 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)

Douglas Lee Burdette, Burdette Law, PLLC, North Bend, WA, for petitioner.

Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

On June 6, 2017, petitioner filed a petition for compensation under the National 

Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,

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(the “Vaccine 

Act”). Petitioner alleges that the influenza (“flu”) vaccine she received on October 11, 

2016, caused her to suffer a right shoulder injury. Petition at 1; Stipulation, filed 

February 13, 2019, at ¶¶ 2, 4. Petitioner further alleges that her shoulder injury 

symptoms have persisted for more than six months. Petition at 2. “Respondent denies

that the flu vaccine caused petitioner to suffer a right shoulder injury, or any other injury 

or condition.” Stipulation at ¶ 6. 

Nevertheless, on February 13, 2019, the parties filed the attached joint 

stipulation, stating that a decision should be entered awarding compensation. The 

 

1 The undersigned 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 Because this unpublished decision contains a reasoned explanation for the 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 subparagraph of 42 U.S.C. § 

300aa (2012).
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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 $143,000.00 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 § 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 

PENNY LYNN BURKE, ) 

) 

) 

) 

) 

Petitioner. 

v. No. 17-750V 

SECRETARY OF HEALTH AND HlJMAN )) 

SERVICES, ) 

Chief Special Master Dorsey 

ECF 

_______________ Respondent. ) ) 

STf PULA TION 

The parties hereby stipulate to the following matters: 

I. Penny Lynn Burke, petitioner, filed a petition for vaccine compensation under the 

National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 et seq. (the "Vaccine 

Program"). The petition seeks compensation for injuries 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. § 100.3(a). 

2. Petitioner receive<l a flu vaccination on October 11, 2016. 

3. The vaccine was administered within the United States. 

4. Petitioner alleges that the flu vaccine caused her to suffer a right shoulder injury. 

5. Pctitioiler 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 flu vaccine caused petitioner to suffer a right shoulder 

injury, or any other injury or condition. 
7. Maintaining their above-stated positions, the parties nevertheless now agree the 

issues between them shall be settled and that a decision should he entered awarding the 

compensation described in paragraph 8 of this Stipulation. 

8. As soon as practicable after an entry of judgment reflecting a decision consistei 

the terms of this Stipulation, and after petitioner has tiled an election to receive compensa 

pursuant to 42 U .S.C. § 300aa-2 l ( a)( 1 ), the Secretary of Health and Human Services will 

the following vaccine compensation payment: 

a lump sum of$143,000.00 in the fonn of a check payable to petitioner. Thi~-

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, a 

petitioner has filed both a proper and timely election to receive compensation pursuant to 

U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceeding~ 

the special master to award reasonable attorneys' foes and costs incurred in proceeding ur 

petition. 

I 0. Petitioner and her attorney represent that compensation to be provided pursua 

this Stipulation is not for any items or services for which the Program is not primarily liat 

under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonab 

expected to be made under any State compensation programs, insurance policies, Federal 

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 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), 

to the availabilitv 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 of 42 lJ .S.C. 

§ 300aa-l 5(a) and (d), and su~ject to the conditions of 42 U.S.C. § 300aa-l 5(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. executor~. administrators, successors or assigns. 

does forever ir.revocably and unconditionally release, acquit and discharge the United States and 

the Secretary of Health and Human Services from any and an 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 o~ 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 t1u vaccination admini.stered on or around October I I, 

2016, as alleged by petitioner in a petition for vaccine compensation filed on or about June 6, 

2017, in the United States Court ofFederal Claims as petition No. 17-750V. 

14. If petitioner should die prior to entry of judgment, thb agreement shall be voidable 

upon proper notice to the Court on behalf of either or both of the parties. 

15. If the special maste1· fails to issue a decision in complete confonnity 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 confom1ity with the terms of this Stipulation, then the parties· 

settlement and this Stipulation shall be voidable at the sole discretion of either party. 

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16. 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 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 dwnages, 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 flu vaccine caused petitioner's alleged right 

shoulder injury, or any other injury or condition. 

I 8. All rights and obligations of petitioner hereunder shall apply equally to petitioner's 

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

END Of STlPULA TION 

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Respectfully submitted. 

PETITIONER: 

ATTORNEY OF RECORD FOR 

PETITIONER: 

LEEBURDE E 

/Btu·dette Law, PLLC 

249 Main A venue South, Ste l 07 #3 3 3 

North Bend, WA 98045 

Tel: (206) 441-5597 

AUTHORIZED REPRESENTATIVE 

OF THE SECRETARY OF HEAL TH 

AND HUMAN SERVICES: 

I / ._--, ,I 

~~:c_~~.:}!'~:'_4:'-/J,:v(y1_, __ NARAYAN NAIR, M.D. 

Director, Division of Injury 

Compens-'ltion Programs (DICP_) 

Healthcare S:,,stems Bureau 

Health Resources and Services Administration 

U.S. Department of Health and Human Services 

5600 Fishers Lane 

Parkla,vr1 Building, Mail Stop 08N 146B 

Rockville, MD 20857 

Dated: ... &-\ \ 3_l_ \ 'i ---······ -··· 

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A t.:THORIZED REPRSE~TATlVE 

OF THE ATTORNEY GENERAL: 

C~

f~~ 

RINE E. REEVES 

Deputy Director 

Torts Branch 

Civil Division 

U.S. Department of Justice 

P.O. Box 146 

Benjamin Franklin Station 

Washington, DC 20044-0146 

ATTORNEY OF RECORD FOR 

RESPONDENT: 

ALEXIS B. 

~&BABCOCK ~~ Assistant Director 

Torts Branch 

Civil Division 

U.S. Department of Justice 

P.O. Box 146 

Benjamin Franklin Station 

Washington, DC 20044-0146 

Tel: (202) 6 l 6-7678