In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1666V Filed: March 16, 2018 UNPUBLISHED
DAWN ANDREWS, Special Processing Unit (SPU); Joint Petitioner, Stipulation on Damages; Influenza v. (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration SECRETARY OF HEALTH AND (SIRVA) HUMAN SERVICES,
Respondent.
John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner. Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On December 20, 2016, petitioner 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 a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of receiving the influenza (“flu”) vaccine on November 24, 2015. Petition at 1; Stipulation, filed March 15, 2018, at ¶¶ 1-2. Petitioner further alleges that she experienced the residual effects of this injury for more than six months. Petition at 5; Stipulation at ¶ 4. “Respondent denies that the influenza vaccine caused petitioner to suffer a SIRVA or any other injury.” Stipulation at ¶ 6.
Nevertheless, on March 15, 2018, 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.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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). 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.
2National 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). Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation:
A lump sum of $70,000.00 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 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 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.
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) DAWN ANDREWS, ) ) Pe titioner, ) ) No. 16-1666V v. ) Chief Special Master Dorsey ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
1. Dawn Andrews , 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 iajuries allegedly related to petitioner's receipt
of an influenza vaccine, which vacci ne is contained in the Vaccine Injury Table (the "Table"),
42 C.F.R. § 100.3(a).
2. Petitioner received the influenza immunization on November 24, 201 S.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered a Shoulder Inju1·y Related to Vaccine
Administration ("SIRVA") as a result of rece iving the influenza vaccine, and experienced the
residual effects of this inj ury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on he1· behalf as a result of her condition.
6. Respondent denie s that the in fl uenza vaccine ca used petitioner to suffer a SIRVA or any other injury.
7. Maintai n ing 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 ofjudgment reflecting a decision consistent with
the t erms of this Stipulation, and after pet itioner has filed an el ection to receive compensation
pursuant to 42 U .S.C. § 300aa-2 l (a)(l ), the Secretary of Health and Human Services will is sue
the following vaccine compensation payment:
A lump sum of $70,000.00 in the form of a check payable to pet itioner . This amount represents compensation for all damages that would be ava ilable under 42 U.S.C. § 300aa-l5(a).
9. As soon as practicable after the entry ofj udgmer:it on entitlement in �his case, and after
petitioner has filed both a proper and timely election to receive compensat ion pul'Suant to
42 U.S.C. § 300aa-21(a)(J), and an application, the parties will su bmi t to further proceedings
before the special master to award reasonable attorneys' fees and costs incurred in proceeding
upon this petition.
10. Petitio ner and her attorney represent that compensation to be provided pursuant to
this Stipulation is not for any i t�ms 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 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.
2 11. Payment made pursuant to paragraph 8 of t his Stipulation and any amounts awarded
pursuant to pamgraph 9 of this Stipulation w ill be made in accordance with 42 U.S.C. § 300aa-
15(i), s ubject to the availability of sufficient statutory funds.
12. The parties and their attorneys further agree and s tipul ate that, except for any award
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1666V Filed: March 16, 2018 UNPUBLISHED
DAWN ANDREWS, Special Processing Unit (SPU); Joint Petitioner, Stipulation on Damages; Influenza v. (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration SECRETARY OF HEALTH AND (SIRVA) HUMAN SERVICES,
Respondent.
John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner. Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On December 20, 2016, petitioner 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 a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of receiving the influenza (“flu”) vaccine on November 24, 2015. Petition at 1; Stipulation, filed March 15, 2018, at ¶¶ 1-2. Petitioner further alleges that she experienced the residual effects of this injury for more than six months. Petition at 5; Stipulation at ¶ 4. “Respondent denies that the influenza vaccine caused petitioner to suffer a SIRVA or any other injury.” Stipulation at ¶ 6.
Nevertheless, on March 15, 2018, 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.
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 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). 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.
2National 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). Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation:
A lump sum of $70,000.00 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 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 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.
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) DAWN ANDREWS, ) ) Pe titioner, ) ) No. 16-1666V v. ) Chief Special Master Dorsey ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
1. Dawn Andrews , 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 iajuries allegedly related to petitioner's receipt
of an influenza vaccine, which vacci ne is contained in the Vaccine Injury Table (the "Table"),
42 C.F.R. § 100.3(a).
2. Petitioner received the influenza immunization on November 24, 201 S.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered a Shoulder Inju1·y Related to Vaccine
Administration ("SIRVA") as a result of rece iving the influenza vaccine, and experienced the
residual effects of this inj ury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on he1· behalf as a result of her condition.
6. Respondent denie s that the in fl uenza vaccine ca used petitioner to suffer a SIRVA or any other injury.
7. Maintai n ing 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 ofjudgment reflecting a decision consistent with
the t erms of this Stipulation, and after pet itioner has filed an el ection to receive compensation
pursuant to 42 U .S.C. § 300aa-2 l (a)(l ), the Secretary of Health and Human Services will is sue
the following vaccine compensation payment:
A lump sum of $70,000.00 in the form of a check payable to pet itioner . This amount represents compensation for all damages that would be ava ilable under 42 U.S.C. § 300aa-l5(a).
9. As soon as practicable after the entry ofj udgmer:it on entitlement in �his case, and after
petitioner has filed both a proper and timely election to receive compensat ion pul'Suant to
42 U.S.C. § 300aa-21(a)(J), and an application, the parties will su bmi t to further proceedings
before the special master to award reasonable attorneys' fees and costs incurred in proceeding
upon this petition.
10. Petitio ner and her attorney represent that compensation to be provided pursuant to
this Stipulation is not for any i t�ms 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 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.
2 11. Payment made pursuant to paragraph 8 of t his Stipulation and any amounts awarded
pursuant to pamgraph 9 of this Stipulation w ill be made in accordance with 42 U.S.C. § 300aa-
15(i), s ubject to the availability of sufficient statutory funds.
12. The parties and their attorneys further agree and s tipul ate that, except for any award
for attorneys' fees and litigation costs, and past unreimbursed expenses, the money provided
pursuant to this Stipulation will be used solely for the benefit of petitioner as c ontempl ated by a
strict construction of 42 U.S.C. § 300aa" IS(a) and (d), and subject to the conditions of 42 U.S.C.
§ 300aaH15(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 United States and
the Secretary of Health and H uman Services from any and al I actions or causes of a ction
(including agreements, judgments, claims, damages, loss of services, expenses and all demands
of wh atever kind or nature) that have been brought, could have been brough t, or co uld be timely
brought in the Court of Federal Claims, under the National Vaccine [njury 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 unsusp e cted pe rs on al injuri es to or death of petitioner l'esuiting
from, or alleged to have resulted from, the influenza vaccination administered on November 24,
2015, as alleged by p eti tion er in a petition for vaccine compensation flied on or about December
20, 2016, in the United States Court of Federal Claims as peti ti o n No. 16-1666V.
14. If petitioner shout d d ie prior to entry of judgment, this agreement shall be voidable
upon proper notice to the Court on beha lf of e ither or both of the p a rties .
3 15. If the special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the Comt of Federal Cla i ms fails to enter judgment in confonnity with a
decision that is in complete conformity with the tel'ms o f this Stipulation, then the parties•
settlement and this Stipulation shall be voidable at the sole discretion of either party.
16. This Stipulation expresses a full and complete negotiated settlement of liability and
damages clai med 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 damages, and further, that a change in the nature ofthe i njury 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 to have a
SIRVA or any othe1· injury.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION I I I I I I I I I I I