     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-0314V
                                         UNPUBLISHED


    GERALD KIEL,                                              Chief Special Master Corcoran

                         Petitioner,                          Filed: February 10, 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)


Scott Rooney, Nemes Rooney, P.C., Farmington Hills, MI , for petitioner.

Glenn Alexander MacLeod, U.S. Department of Justice, Washington, DC, for
      respondent.

                               DECISION ON JOINT STIPULATION1

        On March 1, 2018, Gerald Kiel 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 a left shoulder injury caused by the
influenza vaccination on October 23, 2015. Petition at ¶¶ 4, 17; Stipulation, filed Feb. 7,
2020, at ¶¶ 1-2, 4. Petitioner further alleges that he continues to suffer the residual
effects of his injury and that neither he nor any other party has filed a civil action or
accepted a settlement for his injury, alleged as vaccine caused. Petition at ¶¶ 15, 22-
23; Stipulation at ¶¶ 4-5. “Respondent denies petitioner sustained a Table SIRVA;
denies that the flu vaccine caused petitioner’s alleged left shoulder injuries, or any other
injury; and further denies that his current disabilities are a sequela of a vaccine-related
injury.” 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 February 7, 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 $55,000.00 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

* ** * * * * * * * * * * * * * * * * * ** ** *
                                               *
GERALD KIEL,             *
                         *
     Petitioner,         *
                         *
v.                       *                            No. 18-314V (ECF)
                         *                            CHIEF SPECIAL MASTER
                         *                            BRIAN H. CORCORAN
SECRETARY OF HEALTH      *
AND HUMAN SERVICES,      *
                         *
     Respondent          *
***************** ********

                                          STIPULATION

       The parties hereby stipulate to the following matters:

        l. 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 injuries allegedly related to petitioner's receipt of trivalent 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 flu vaccine on or about October 23, 2015.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that he suffered a left shoulder injury related to vaccine

administration (SIRVA), as a consequence of the flu immunization he received on or about

October 23, 2015, and further alleges that he suffered the residual effects of this injury for more

than six months.




                                            Page 1 of 5
        5. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on his behalf as a result of his condition.

        6. Respondent denies petitioner sustained a Table SIRVA; denies that the flu vaccine

caused petitioner's alleged left shoulder injuries, or any other injury; and further denies that his

current disabilities are a sequela of a vaccine-related injury.

        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-21(a)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

        A lump sum of $55,000.00 which amount represents compensation for all elements of
        damages that would be available to petitioner under 42 U.S.C. § 300aa-15(a), in the form
        of a check payable to petitioner.

        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 attorneys' fees and costs incurred in proceeding upon this

petition.

        10. Petitioner and his attorney represent that they have identified to respondent all

known sources of payment for items or services for which the Program is not primarily liable

under 42 U.S.C. § 300aa-15(g), including State compensation programs, insurance policies,




                                             Page 2 of 5
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.

        11. Payment 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-l 5(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 attorney's 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 contemplated by a

strict construction of 42 U.S.C. § 300aa-l 5(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, petitioner, in his

individual capacity, and on behalf of his heirs, executors, administrators, successors, and 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-10 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 or

about October 23, 2015, as alleged by petitioner in a petition for vaccine compensation filed on

or about March 1, 2018, in the United States Court of Federal Claims as petition No. l 8-3 I 4V.




                                              Page 3 of 5
        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.

        15. If the special master fails to issue a decision in complete conformity with the terms

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 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 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 left

shoulder injuries, or any other injury or any of his current disabilities.

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

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

                                      END OF STIPULATION




                                              Page 4 of 5
 Respectfully submitted,


 PETITIONER:


~!W
 GERALD KIEL

 ATTORNEY OF RECORD .FOR                             AUTHORIZED REPRESENTATIVE
 PETITIONER:                                         OF THE ATTORNEY GENERAL:




Nemes, Rooney P. .
26050 Orchard Lake Road
                                                      ~ vr
                                                      Deputy Director
                                                      Torts Branch
                                                                                t______
Suite 300                                             Civil Division
Fannington Hills, MI 48334                            U.S. Department of Justice
Tel: (248) 442-3300                                   P. 0. Box 146
                                                      Benjamin Franklin Station
                                                      Washington, D.C. 20044-0146


AUTHORIZED REPRESENTATIVE OF                          ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH AN:0                          RESPONDENT:
HUMAN SERVICES:



TAM~a;;E~:~                  rt~
Acting Director, Division of Injury
Compensation Programs                                Torts Branch, Civil Division
Healthcare Systems Bureau                            U.S. Department of Justice
Health Resources and Services Administration         P.O. Box 146
U.S. Department of Health                            Benjamin Franklin Station
and Human Services                                   Washington, D.C. 20044-0146
5600 Fishers Lane                                    Tel: (202) 616-4122
Parklawn Building, Stop-08N l 46B
Rockville, MD 20857


                                                        Dated:   i-[lf /U> __ _

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