     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-1414V
                                         UNPUBLISHED


    JANET MUSCARI,                                            Chief Special Master Corcoran

                         Petitioner,                          Filed: March 27, 2020
    v.

    SECRETARY OF HEALTH AND                                   Special Processing Unit (SPU); Joint
    HUMAN SERVICES,                                           Stipulation on Damages; Influenza
                                                              (Flu) Vaccine; Shoulder Injury
                        Respondent.                           Related to Vaccine Administration
                                                              (SIRVA)


Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.

Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.


                               DECISION ON JOINT STIPULATION1

       On September 17, 2018, Janet Muscari 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 left SIRVA on September 30,
2017.. Petition at 1; Stipulation, filed March 24, 2020, at ¶¶ 1, 4. Petitioner further
alleges the vaccine was administered in the United States, she suffered the residual
effects of this injury for more than six months, and there has been no prior award or
settlement of a civil action for damages on her behalf as a result of her condition.
Petition at 1, 6-4; Stipulation at ¶¶ 1-5. “Respondent denies that the flu vaccine
administered on or about September 30, 2017, is the cause of petitioner’s alleged
SIRVA, or any other injury, or her current condition.” Stipulation at ¶ 6.



1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am
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). 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, I agree that the identified material fits within this definition, I 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).
       Nevertheless, on March 24, 2020, 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 my decision 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 $35,000.00 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.

       I approve 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/Brian H. Corcoran
                                          Brian H. Corcoran
                                          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


  JANET MUSCARI,

                 Petitioner,                              No. 18-1414¥
                                                          Chief Special Master Corcoran
  V,                                                      SPU

  SECRETARY OF HEALTH AND
  HUMAN SERVICES,

                 Respondent.


                                          STIPULATION

        The parties hereby stipulate to the following matters:

        1. Petitioner, Janet Muscari, filed a petition for vaccine compensation under the National

Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l Oto 34 {the "Vaccine Program"). The

petition seeks compensation for injuries allegedly related to petitioner's receipt of the inflQenza

("flu:"J vaccine, 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 September 30, 2017.

       3, The vaccine was administered within the United States.

       4. Petitioner alleges that the fln vaccine caused her to develop a Shoulder Injury Related

to Vaccine Administration {"SIRVA"). Petitioner further alleges 111at she suffered the residual

effects of this 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.




                                            Page 1 of 5
            6. Respondent denies that the flu vaccine administered on or about September JO, 2017,

 is t.he cause of petitioner's alleged SIRVA, or any other injury, or her current condition.

            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 of judgment 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-2 t(a)(l), the Secretary of Health and Human Services will issue the

following vaccine compensation payment:

                  A lump sum of $35,000.00, in the form of a check payable to petitioner,
                  representing 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, 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 anomeys' fees and costs incurred in proceeding upon this

petition.

        10. Petitioner and her attonwy represent that they have identified to responden1 all known

sources of payment for items 01' services for which the Program is not primarily liable under 42

U.S.C. § 300aa-15(g), includiug 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 prepaid basis.




                                             Page 2 of5
         11. Payme.nt made pursuant to paragraph 8 of this Stipulation and any amounts awarded

 pursuant to paragraph 9 will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the

 availability vf-.suf£ck.11t st&tutc,ry fonds.

         12. The parties and their attorneys further agree and stipulate that, except for any award

for attorney's fees and litigation costs, and unreimbursed medical expenses: the money provided

pursuant to this Stipulation will be used solel)' for the benefit of petitioner as contemplated by a

strict construction of 42 U.S.C. § 300aa" l S(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, petHioner, in her individual

capacity, and on behalf of her heirs, executors, administrat0rs, successors, and assigns, does

forever irrevocably and w1G011ditionally 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

agreernents,judgments, claims, damages, loss of sef\lices, expenses at:id aJI 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-IO et seq., on account of, or in any way growing out of, an;- and all known or

unknown, suspected or unsuspected personal iajuries to or death of petitioi1er resulting from, or

alleged to have resulted from, the flu vaccination administered on or about September 30; 2017,

as aUe.ged by petitioner in a petition for vaccine C(lmpensation filed on or about September 17,

2018 in the United States Court ofFederal Claims as petition No , 18-1414V.

        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.




                                                 Page .'.i Qf 5
         15. If the special master fails to issue a decision in complete confonnity with the tem1s of

this Stipulation or if the United States Court of Federal Claims fails to enter judgrnent in

confonnity 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.

        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 do any act or thJng other than is herein expressly stated and

clearly agreed to. The parties further agree and understand that the award desci·ibed 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 SIRVA

or any othet injury OI' any of her current disabilities.

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

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

                                      ENO OF STIPULATION




                                             Page 4 of 5
Respectfully submitted,




ATIORNEYOFRECORDFOR
PETITIO~ER:

                                                                                      -
                                                     Civil Division
                                                     U. S. Oepartment of Justice
                                                     P. 0. Box 146
                                                     Beitjamin Franklin Station
                                                     Washington, O.C. 20044-0146




AUTHORIZED REPRESENTATIVE OF                         ATTORNEY OF RECORD FOR
THE SECRETAR\' OF' HEALTH AND                        RESPONDENT:
HUMAN SERVICES:                                      ~~;J_ - P ~
                                                        ~ (~                       r c.   -
TAMARA OVERBY                                        HEATHER L. PEARLMAN
Acting Director, Division of                         Assistant Director
In,iury Compensation Programs (DICP)                 Torts Branch~Civil Division
Healthcare Systems Bureau                            U.S. Department of Justice
U.S. Department of Health                            P.O. Box 146
and Human Services                                   Benjamin FrM.klin Station
5600 Fishers Lane                                    Washington, D.C. 20044-0146
Parklawn Building, Stop-08N 146B                     Tel; (202) 353-2699
Rockville, MD 20857




Dated;   _3-#-()J._'-I
                    _,/ :>-U
                         _ _

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