In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1929V Filed: December 29, 2023
ROBERT ELLIOTT,
Petitioner, v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
Michael Arvin Firestone, Marvin Firestone, MD, JD, and Associates, San Mateo, CA, for petitioner. Emily H. Manoso, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
On September 29, 2021, 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 he suffered Transverse Myelitis (“TM”) and right sided shoulder pain and dysfunction as a result of his October 2, 2019 influenza (“flu”) vaccination. Petition at 1; Stipulation, filed December 28, 2023, at ¶ 4. Petitioner further alleges that she has experienced the residual effects of her condition for more than six months, that there has been no prior award or settlement of a civil action for damages as a result of her condition, and that her vaccine was administered in the United States. Petition at 2, 22; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused petitioner’s alleged TM, right-sided shoulder pain with dysfunction, or any other injury or petitioner’s current disabilities. ” Stipulation at ¶ 6.
1 Because this document contains a reasoned explanation for the action taken in this case, it must be
made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the document 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, 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. 99-660, 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). Nevertheless, on December 28, 2023, 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 the decision of the Court in awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, I award the following compensation:
A lump sum of $85,000.00 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.
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/Daniel T. Horner Daniel T. Horner 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
ROBERT ELLIOTT, ) ) Petitioner, ) No. 21- 1929V ) Special Master Homer v. ) ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
I. Petitioner, Robert Elliott, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-lO to 34 (the "Vaccine
Program"). The petition seeks compensation for injuries allegedly 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 received the vaccine on or about October 2, 2019.
3. The vaccine was administered within the United States.
4. The petition alleges that petitioner suffered transverse myelitis ("TM"), and right-
sided shoulder pain with dysfunction, that were caused-in-fact by the flu vaccine. Petitioner
further alleges that petitioner experienced the residual effects of this condition for more than six
months.
S. Petitioner represents that there has been no prior award or settlement of a civil action
for damages arising out of the alleged vaccine injury. 6. Respondent denies that the flu vaccine caused petitioner•s alleged TM, right-sided
shoulder pain with dysfunction. or any other injury or petitioner's current disabilities.
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 ofjudgment 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)(I ), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $85,000.00 in the form of a check payable to petitioner. This 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 ofjudgment 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)(l), and an application, the parties will submit to further proceedings
before the special master to award reasonable attorneys' fees and costs incurred in any
proceeding upon this petition.
10. Petitioner and petitioner's 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 ex.tent 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, and
represent that they have identified to respondent all known sources of payment for items or
2 services for which the Program is not primarily liable under 42 U .S.C. § 300aa-l 5(g).
11.
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1929V Filed: December 29, 2023
ROBERT ELLIOTT,
Petitioner, v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
Michael Arvin Firestone, Marvin Firestone, MD, JD, and Associates, San Mateo, CA, for petitioner. Emily H. Manoso, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
On September 29, 2021, 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 he suffered Transverse Myelitis (“TM”) and right sided shoulder pain and dysfunction as a result of his October 2, 2019 influenza (“flu”) vaccination. Petition at 1; Stipulation, filed December 28, 2023, at ¶ 4. Petitioner further alleges that she has experienced the residual effects of her condition for more than six months, that there has been no prior award or settlement of a civil action for damages as a result of her condition, and that her vaccine was administered in the United States. Petition at 2, 22; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused petitioner’s alleged TM, right-sided shoulder pain with dysfunction, or any other injury or petitioner’s current disabilities. ” Stipulation at ¶ 6.
1 Because this document contains a reasoned explanation for the action taken in this case, it must be
made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the document 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, 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. 99-660, 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). Nevertheless, on December 28, 2023, 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 the decision of the Court in awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, I award the following compensation:
A lump sum of $85,000.00 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.
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/Daniel T. Horner Daniel T. Horner 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
ROBERT ELLIOTT, ) ) Petitioner, ) No. 21- 1929V ) Special Master Homer v. ) ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
I. Petitioner, Robert Elliott, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-lO to 34 (the "Vaccine
Program"). The petition seeks compensation for injuries allegedly 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 received the vaccine on or about October 2, 2019.
3. The vaccine was administered within the United States.
4. The petition alleges that petitioner suffered transverse myelitis ("TM"), and right-
sided shoulder pain with dysfunction, that were caused-in-fact by the flu vaccine. Petitioner
further alleges that petitioner experienced the residual effects of this condition for more than six
months.
S. Petitioner represents that there has been no prior award or settlement of a civil action
for damages arising out of the alleged vaccine injury. 6. Respondent denies that the flu vaccine caused petitioner•s alleged TM, right-sided
shoulder pain with dysfunction. or any other injury or petitioner's current disabilities.
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 ofjudgment 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)(I ), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $85,000.00 in the form of a check payable to petitioner. This 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 ofjudgment 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)(l), and an application, the parties will submit to further proceedings
before the special master to award reasonable attorneys' fees and costs incurred in any
proceeding upon this petition.
10. Petitioner and petitioner's 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 ex.tent 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, and
represent that they have identified to respondent all known sources of payment for items or
2 services for which the Program is not primarily liable under 42 U .S.C. § 300aa-l 5(g).
11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 9 of this Stipulation wiJl be made in accordance with 42 U.S.C. § 300aa-I5(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, 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-J S(a) and (d), and subject to the conditions of 42
U.S.C. § 300aa- l5{g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in petitioner's
individual capacity, and on behalf of petitioner's heirs, executors, administrators, successors or
assigns, does forever irrevocably and unconditionally release, 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. 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 United States Court of Federal Claims, under the National Vaccine
Injury Compensation Program, 42 U.S.C. § 300aa-l 0 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 vaccination
administered on October 2, 2019, as alleged by petitioner in a petition for vaccine compensation
filed on or about September 29, 2021, in the United States Court of Federal Claims as petition
No. 21-1929V.
14. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable
3 upon proper notice to the Court on behalf of either or both of the parties.
15. lfthe special master fails to issue a decision in complete confonnity with the tenns
of this Stipulation or if the United States Court of Federal Claims fails to enter judgment in
conformity with a decision that is in complete confonnity with the tenns of 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 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 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 flu vaccine caused petitioner's alleged injury
or any other injury or petitioner's current ~ondition.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
4 Respectfully submitted,
PETITIONER: 1 ----
~~~c:- JioBERT ELLIOTT
AITORNEYOFRECOJtDFOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: ~ ~ ~ Y : : - ~ PJ~ ~RESONPi HEATHER L. PEARLMAN 1700 South El Camino Real, Suite 408 Deputy Director San Mateo, CA 94402 Torts Branch, Civil Division 650-212-4.00 U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: George R. Grimes - Di9itAUYsi§nt11byGeorgtn.
~ Gl1mes-S14 S14 Oall!: 2023. t 2.07 0815000 .OS'OO'
CDR GEORGE REED GRIMES, MD, MPH Director, Divisi•n of Injury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane. 08W-25A (202) 305-3912 Rockville, MD 20857 emily.h.manoso@usdoj.gov
Dated: .12.A. l-~ IZ:3. __