        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-142V
                                   Filed: December 30, 2015
                                        UNPUBLISHED

****************************
PAULETTE CUMMINS,                         *
                                          *
                     Petitioner,          *     Joint Stipulation on Damages;
                                          *     Influenza (“Flu”) Vaccine;
                                          *     Severe Shoulder Pain; Special
SECRETARY OF HEALTH                       *     Processing Unit (“SPU”)
AND HUMAN SERVICES,                       *
                                          *
                     Respondent.          *
                                          *
****************************
Jeffrey S. Pop, Jeffrey S. Pop, Attorney at Law, Beverly Hills, CA, for petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On February 11, 2015, 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 severe shoulder pain as a result of
her September 18, 2012 influenza [“flu”] vaccine. Petition at 1; Stipulation, filed
December 30, 2015, ¶¶ 2, 4. Petitioner further alleges that she has suffered the
residual effects of her injury for more than six months and has received no prior
compensation, award, or settlement of a civil action for damages as a result of her
injury. Petition, ¶¶ 26-27; Stipulation, ¶¶ 4-5. “Respondent denies that the flu vaccine
caused petitioner’s alleged shoulder pain. Respondent further denies that the flu
vaccine caused petitioner any other injury or her current condition. ” Stipulation, ¶ 6.

       Nevertheless, on December 30, 2015, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. The

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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended
at 44 U.S.C. § 3501 note (2006)). 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.
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).
undersigned finds the stipulation reasonable and adopts it as the decision of the Court
in awarding damages, on the terms set forth therein.

        The parties stipulated that petitioner shall receive the following compensation:

        A lump sum of $95,000.00 in the form of a check payable to petitioner.
        Stipulation, ¶ 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
       Case 1:15-vv-00142-UNJ Document 24 Filed 12/30/15 Page 1 of 5




              IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                        OFFI CE OF SPECIAL MASTERS


PAULETfE CUMM INS.

                             Petiti oner.

       v.                                                        No. 15-l-12V
                                                                 Chie l' Special Master Dnrse~
SECRF.TA RY OF HEALTH A D                                        1-:CF
HUMAN SE RV ICES.

                             Rcsrondcnt.



                                                    STIPULATION

        Th e parties hereby stipulate to the follo\\'i ng matters:

         I . Pet it ioner   lilcd n petition for vacci ne compcnsmion undcr the N at ional       V~11:e i 111.: Injury


Com pensation Program.          42 l l.S.C.   ~   300aa-10 to 3-1 (the "Vaccine Program"). The rc1iti o11

seeks compen sation for injuries alleged l y related 10 pctitinner· s receipt ol' an inllucn1.a ("llu")

vaccine. w hich vaccine is contained in th e Vacci ne Inj ury T able (the ·Table"). -1 2 C.F.R. ~ 100.3

(a).

        ..,   Petit inner recei\'ccl her llu immunin llinn on Septem ber 18. 20 12.

        3. Th e vaccine \\n s administered within the United States.

        4. Pet itio ner alleges that she dcvdopcd severe shoulder pain as a consequence n l'the llu

immuni.-::ation she rece ived. and l'urther alleges that sh<.: c.\per icnccd the residual effect s ol'this

injury fi)I' more than six month s.

        5. Petitioner represents that there has been no prior a\\ard or settlcment o l'a civ il ac tion

f<> r damages as a result of her conditi on.
       Case 1:15-vv-00142-UNJ Document 24 Filed 12/30/15 Page 2 of 5




         6. Respondent denies that the llu vacc ine caused petitioner's alleged shoulder pa in.

Responclenc fu rther denies that the nu \accine caused petitioner an~ other injury or her cu rrent

cond ition.

         7. Mai nta ining their abo\'e-stated positions. the panics ncvcrlhtkss 110\\ agree that the

issues between them shall be settled and that a clcl.:ision shoulJ be entered a"arding the

compensat ion described in paragraph 8 of this Stipulation.

         8. As soon as practicable nf'ter an entr) ol'judgment rellecting a decision consistent" ith

rhe terms o f thi s Stipulation. and aller pet itioner has lilccl an elect ion to recei ve compensation

pursuant to ~ 2 LJ.S.C.       *300an-2 I (a)( I). the Set:retar) ol' I lea Ith and 1luman Services" ill issue
the fol lowi ng vacei ne compcnsat ion pa) mcnt:

                     A lump sum o l'S95,000.00 in the form ora check pa) able to pctitionL'r. This
                     amount represents compensation for all damages that \\Otild be a\'ailablc under
                     42 U.S.C. ~ 300aa- 15(a).

         9. As !inon a-; practi<.: abl c nl'tcr the entry ol'juJg1111.:nt on cntitlcmrnt in this L'asc. and alier


pcritioner has filed both a rropcr and timely election to recci\'c compensation pursuant to

.:\ 2 U.S.C.   ~   300aa-2 I (a)( I ). and an application. the parties" ill submit to rurther proccc.:dings

before the special master to ;rnard reasonable attornc.:)s· lt:cs and costs incurred in prnn:cclin g.

upon thi s petition.

         I 0. Petitioner and her altorney represent that the: have idcntilied to rcspomknt all

known sources or payment lor items or services 1\)r "hich the Prngrnm is not primaril) liable

under -1 2 U.S. C.     *300aa- I 5(g). incl uding St:llc com pensatic1n   prngram ~. insurance polii.:ics.

Federal or State health benefits programs (other than Title XIX of the S1.icial Sc1:urit: 1\ ct

(-12 Ll.S.C. ~ 1396 ct seq.)). or entit ies that provide hea lth se rvices on a pre-paid basis.
        Case 1:15-vv-00142-UNJ Document 24 Filed 12/30/15 Page 3 of 5




          11. Pa) nH!nls made pursuant lo paragraph 8 and any amounts 11\\ardt.:cl pursuant to

paragraph 9 ofthis Stipulation will be mack in accordance ''ith -12 lJ.S.C. ~ 300aa-15(i). subject

to the availability of sufficient statutor) !imds.

          12. The parties and thdr attornc)s rurther agree and stipulate that. e.\ccpl for an~ a"<ml

for mtorneys· tees and litigation costs and past urm:imhursablc c:-.pcnse~. tht: money prcl\'idcd

pursuant to this Stipulation\\ ill be used sold) for the benclit of petitioner as contemplated b~ a

strict construct ion of 42 U.S.C. ~ 300aa- I 5(a) and (d ). and sul~jet.:l to the conditions        or -12 lJ .S.C.
~   300aa- 15(g) and (h).

          13. In rctllrn for the payment:, described in pnragraphs 8 and 9. petitioner. in her

individual capacity. and on bchall'ol'hcr ht:irs. cxo;:cutors. administrators. s uccessor~ or assigns.

docs forever irrevocably and uncondilionall::. rcl east:. acquit and discharge th!.! United States and

the Secretary of Health and Human Services from an) and all actions or causes or action

(inc luding agn:c111e11ts . juugmcnts. c laims. danwgcs. luss uf'Sl!J'\ ice::-. c:-.pcnses and all dc1111111d-;

ol'wha1cvcr kind or nature) that ha\e bel.!n brought. could have been brought. or could be tim e!;.

brought in the Court    or Federal Claims. under the r\ation:ll Vaccine Injury Compensation
Program. 42 U.S. C. ~ JOOaa- 10 ct seq .. on an:ou111 nl: tir in     illl)   \\ll ~ gro" ing l lUl or. any and all

knmvn or unknown. suspected or 1111 suspcctcd personal injuries lo or death              orpct itinner rcsuIt ing
frnm. or alleged to have resulted rrnm. the llu "accination administered on September 18. 2012.

as alleged by petitioner in a petition for vacc ine compensation filed on Februar: 11. 2015. in the

United States Court orFcderal Claims as petition            o. 15-l-12V.

         1-1. II' petitioner should die prior to cntr) ofjudgmcnt. thi s agreement shall be voidable

upon proper not ice 10 the Court on behalf of ei ther or both ol'thc parties.




                                                        "
              Case 1:15-vv-00142-UNJ Document 24 Filed 12/30/15 Page 4 of 5




                 15. If' the specia l master foi ls to issue a decision in com plete con lim11 ity \\·ith the terms

       of this St ipulation or ir the Court or Federal Claims foils to enter judgment in conlormity \\ ith a

       decision that is in complete con lorrn ity ''ith the terms of'this Stipulmion. then the parties·

       settlement and thi s St ipulation shall be' oidablc at the so le discreti on nl'cit hcr pan:.

                 16. Thi s Stipu lation expresses a l"ull and com plete negot iated scu lcment or liabi li ty and

      damages claimed under the National Childhood Vaccine Injury /\ct of" 1986. as amended. c\ccpt

      as ot herwise noted in paragraph 9 above. There is absolute!; nn agrccmL'nt on the part ol' thc

      parties hereto to nrn ke any paymen t or to do an: act or thing 01her tlrnn is herein expressly stated

      and clearly agreed to. The parties r·urther agree and untkrstand that the a\\ard described in th is

      Stipulat ion may reflect a compromise of the parties· rcspecti\·c posit ions as to      liabilit~· amllor
      amount    of dam ages. and further. th at a change in the nat ure ol'thc injur") or conditiun or in thc

      items   orcompensati on so ught. is not grounds to modif~ or re vise this agreemen t.
               17. This Stirulntion shall not be construed as an adm ission b~ the l lnitcd Stales t)r the

     Secretary   or I Ical th and I luman Services thai the llu v;1c1: inat io11 caused petitioner"~ shuulckr
     pain or any other injury.

               18. All rights and obligat ions o f peti1ioncr hcrcundcr shall appl: cquall: to pctitiom:r.. s

     hci rs. e:-;cc utors. administrators. successors. and/or nssigns.

                                              END OF STIPI Jl..1\TION
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   Case 1:15-vv-00142-UNJ Document 24 Filed 12/30/15 Page 5 of 5




 Respectfully submitted,


l'E'I'mONER:




 A'ITORNEY OF RECORD FOR                           AUTHORIZED REPRESENTATIVE
 PETITIONER:                                       OF' 1liE ATTORNEY GENERAL:


                                                   ~a~
~•m
9107 Wilshire Blvd, Sutte 700
Bem-ly Hills, CA 90210
                                                   VINCENT J. M'ATANOSKI
                                                   Deputy OiredDr
                                                   Tons Branch
                                                   Civil Division
(310) 273-5462                                     U.S.DepartinentofJusticc
                                                   P.O. Box 146
                                                   Benjamin f'rankiin Sratlon
                                                   Washington, DC 20044-0146


                                NTATlVt;           A'ITORNEY OF RECORD FOR
                               FHEALTB             RESPONDENT:




A. MELISSA H USTON, M.D.,            M.P.H, FAAP   ADRIANA TEITEL
Director, Division of                              Trial Attorney
Injury Compensation Programs                       Torts Branch
Healthcare Systems Bureau                          Civil Division
V•.S. Department of Health                         U.S. Department of Justice
and Huma!) Services                                P.O. Bax 146
5600 fishers Lano                                  Benjamin Franklin Station
Parklawn Building, Mail Stop 08Nl46B               Washington, DC 20044--0146
Rockville. MD 20857                                (202) 616-3677



oaicd:   Dec 3 0 .'2 0l5   }




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