         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 18-358V
                                     Filed: August 23, 2019
                                         UNPUBLISHED


    YOUHONG LU,

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


Michael Arvin Firestone, Marvin Firestone, MD, JD, and Associates, San Mateo, CA, for
petitioner.
Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION 1

Dorsey, Chief Special Master:

       On March 7, 2018, 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 Shoulder Injury Related to Vaccine
Administration (“SIRVA”) as a result of his November 2, 2016 influneza (“flu”)
vaccination. Petition at 1; Stipulation, filed August 21, 2019, at ¶¶ 2, 4. Petitioner
further alleges that the vaccine was administered within the United States, that he
suffered the residual effects of his injury for more than six months, and that there has
been no prior award or settlement of a civil action on his behalf as a result of his injury.
See Petition at ¶¶ 26-27; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner
sustained a SIRVA Table injury; denies that the flu vaccine caused petitioner’s alleged

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
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).
SIRVA, or any other injury; and further denies that petitioner’s current disabilities are
sequelae of a vaccine-related injury.” Stipulation at ¶ 6.

        Nevertheless, on August 21, 2019, 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.

     Pursuant to the terms stated in the attached Stipulation, the undersigned
awards the following compensation:

        A lump sum of $58,726.04 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.

       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
                   .lNTHE l/NITED STATES· COURT OF FEDERAL CLAIMS
                               OFFICE OF SPEC[AL.MASTERS

 ''VOUHO.NO LU;

                          Petiti'oner,.

        v•.                                                 No; l.8~358V
                                                            Chief Special Master Dorsey
 'SECRETARY OF HEALTH .AND                                  ECF-SPU
  HU.MAN SERVICES,
                          Resppndent.



                                             ST1PULATlON

        The parties hereby stipulate to the following matters:

         I. Yoohong Lu ("petitionet") filed a·pethion for: va-ccine_compensa~ion ·under the

N:a:tional Vaccine lnjt.1ry Compensation Prog(~. 42 U.S.C. § J00aa~lO tQ 34 (the "Vaccine

Program"). The petition seeks compensation for injurres allegedly related to _petitioner's receipt

ofthe influe·nt.a (''t.la") vaccine; which vaccine· is contained in-the Vaccine Injury Table-{the.

"Table"), 42 C._
               F.R. § 100.3(~):
        2.' Petitioner received a   nu vaccine in his left delt.oi.d on Novernber-.2, -2016,
        3. The vaccine was adm_inistered w{tbin,the Uqited States.

        4. ·eetitioner allege~ _that he suffered a shoulder injury related to vaccine administration·

{"SIRVA")1 a Table injury, ·which was daus·ed b)' the flu vaccination. Petition.er further alleges_

that-he suffered th<:; x:esidual effects,of these -injuries for more ·than six months.

        5', P~titioner represents·thanhere has be-en no prior award or settlement of a ci:vil action

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




                                                     .l
        6. Respond~nt den res that petitioner, sustained a -SIRVA Table injury;·denies that the flu

vaccine caused petitionel''·s-alleged SIRVA, or any ..other injury;   and further denies that
petitiqner 's curr~nt disabilities·are sequefae;of a .vaccine-rel~ted injµry.

        1: Maintaining .their above-stated ·t::iositions, the parties nevertheless now ·agr.ee that the
issues between them-shall be settled and that a decision should be entered awarding the

compensation·d~scribed in par~graph if of thi:; Stipulati_on.

        8. As soon a~.practicable after an e;:ritry of judgment reflecting a decision-~onsistenrwith

the·tenns of this Stil)ulation, and·after petiti'oher has filed an election to. receiv~ ·compensation

pursuant to 42 ·u.s.c..§ 3"00aa-2 l (a)(l), the Secretary. ·o f Health and Human Ser-vices will issue

t_he.follo,wing_vaccjne.compcnsation payment:

        A lump sum of$58. 726.04 in the fo.rm ;of.a-·check payable to p~titioner. This amount
        represents.compensa.tior,t for all da·mages that-would be available under 42 U.S.C.
        § 300a_a• I 5(a),

        9. As .soon a(practicable -after the entry of judgment on: entitlement in this case,.:and after

petitioner has filed both a proper and -timely election to rect;ive cot'!'lpensation pursuant to 42

U.S_.C. § 300aa-21 (a)O )~ ·and an applicati_on, the parties will submit to fu~her·proceedings before

the special master-to award reasonable attorneys' fees and costs incurred in ~roceedi.ng·upon. thfs

petition.

        l 0. Petitioner and his attorney represent that- they have identified to respondent all

known sources··ofpaymerit for items or-services for which-the,Program is not primarily liable

under.42 U.S. C. § 300aa-1·5(g), including State compensation programs, insuranc~ policies,

Federal orState health benefits programs (other.than Tille XIX of the Socia·! Security Act .(42

U.S.C.§_1396 et-seq.)). or entities that_provide health ser.vices .on a prepaid basis.




                                                    2.
        11. Paymenrmade pursuant t9 paragraph 8, and any ampu_nts awarded pursuant to

par~grapb ·9-of this Stipul~tLon, will be made in accordance with' 42 U.S;C. § 3.00aa-1 S(i), subject

tb the availab!lity·of sufficient'Statutory funds.

        12. The _parties and their attorn~ys further agree and stipulat~ that, e"cept for any award

for attorneys' fees a,nd li~igation costs, and 'past unreimbursed experis_es, th~ mon~y prov'ide~

pu'rsliant to this Stipulation will be used·soJely for the benefit of petitioner as contemplated by. a

-strict construction of 42 U.S.C.

§ 300aa-l5(a):and (d), and ~ubject to-the conditi_ons of 42 U.S.C. §,300aa-l.$(g) and (h).

        13. In return.for the:payments,_described in paragraphs 8 .and 9, petitfoner, in his

.in9ividua,I capacity, and on behalf of his heirs, execut6rs,.administrators, successors, and assigns,

does fo.rever .irrev.occtbly
                           ·,
                              and unconditionally. release, acquit-and-discharge the United States and

the Secretary -of Health and Human s'erv'ices •from any and all actions ·or caus~s of action.

{in~h4ding agreements, judgments, claims, damages; Joss of services, expenses and all .demands

of whatever kind.or nature) that have been brought1 could have .been·bro'ught1 0r could ·be timely

.brought in the United States Court of-Federal Claims, under the National Vaccine Injury

Cornpensatiqn Program, 42 U..S.<:;; § .300aa- i-o et seq., on aGcount -c,f, or in any way growi~g out

9f, any·and all.known or .unknown, suspected or unsuspected·personal injuries to or death ·o f

petitioner resulting from, or alleged to bave (e$uited from, the flu vaccine administere~ on

Novemb~r 2, 2016, as alleged by petitioner in a.petition for vaccine compens-ation filed on

March·7, 2'01.8, in·the United States Court of Federal. Claims as.petition No. l8-358V.

        1-.4. ·lfpetitioner shouki die prior to ~ntry of jQdgment, this agr_e~menf.shallJ:ie voidable

upon proper notfoe to the ·Cour.t mi behalf of either or ooth oftbe parties.




                                                     3
         i·S, •. If the special m,aster fails to issue a decision in complete conformity with the terms

of this Stipula't1on or if the United States Court of Feder.al Claims faiis to enter.judgment in

confor.mity.·with a decision that is in comp]et~ conformity with the terms ofthis Stipulation, then

the pa11ies' settlement and this Stipulation shall oe voidable-at the sole discretion of either party.

        16. This Stipulation expresses a full and complete negotiated settlement of lial;>iUty and

damages cl~imed under the Na~ional Childhood Vaccine .Injury Act of' 1986, as amen,;led, except

as otherwise .noted in paragr~ph 9 ~bo',(e. There is absolutely no agreement on the part of the

parties:hereto to make an_y payment or do any-act or thing other than-is her.ein -~xpressly stated

and clearly agre.ed to. The parti~s further-agree and understand that the .award described in this

Stipulation may reflect a:cornpromise of the parties' ·respective positions as to liability and/or

amount.of damages, .and further, that a change in the nature of toe:injury .or condition-or in the

items of co111pensation sought, is not grounds to .modify or revise.this agreement.

        p. This Stipulation shall not .be construed as an admission by the. United States or the
Se.cret-ary of Health and Human S.ervic~s that the flu vaccine caused petitionei'~ SIRVA, _or al'!y

·other-injury, or.that his current disabilities ar.e ~equelae of his alleged vaccine-related· injury.
                                                     I

        Is·.. All rights and obligations· of petitioner hereunder sha.11 apply equally to petitfoner's

heirs. e~ecutors, administratc;,rs, successors, ~nd/or assign_s.

I

                                       END OF S-TIPULA:TION
I




                                                    4
.Respectfully submitted,




YOHONO#
ATTORNEY. OF·.RE'CQRD FOR                         AUTHORIZED REPRESENTATIVE
PETITION£R:                                       OF THE ATTORNEY G.ENERAL:

          '--




2lf&;i4[i-J;)
1700·Sbuth·El Camino Real, Ste. 204                         'irector
San Mateo, CA 94402        .                      Torts Branch
Tel: (650)212-490_0                               Civil Division
                                                  U.S .. D~partment of'Justice
                                                  P. 0. Box r46
                                                  Benjamin. Franklio Station
                                                  Washingfon, DC 20044~0146.


AUTHORIZED REPRESENTATIVE OF                      ATTORNEY OF .RECORD FQ~
THE-SECRETARY OF HEALTH AND                       RESPONDENT:
HUMAN.SERVICES:•   .




TAMARA OVERBY
 Acting Director·
 Division of Injury" Compensation Prngrams
                                                  ~Senior T:rial Attorney
                                                   Torts Branch
 flealth.c.are_Sys(ems Bureau-       ·             Civil Div.isfon.
 Heal.th Resqurces and ·Services·Administration    U..S. Departmenf-·Qr Justice
 U.S. Department of Health and Human Services      P. 0. Box 146
 5600 Fishers· Lane                                B~njamin Franklin Statibn
-Park(awn auildir1g, Stop-08Nl46B                  Washington, DC. 20044~0 !'46
 Rockvi°lle, MD 20857                              T~l: (202) 6.16-4099

DATE:   8/11/ffl
