     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-1733V
                                         UNPUBLISHED


    KAREN THOMAS,                                             Chief Special Master Corcoran

                         Petitioner,                          Filed: May 13, 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.

Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION ON JOINT STIPULATION 1

       On November 8, 2018, Karen Thomas 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 Shoulder Injury Related to
Vaccine Administration (SIRVA) as a result of her October 13, 2017 influneza (“flu”)
vaccination. Petition at 1; Stipulation, filed May 12, 2020, at ¶¶ 2, 4. Petitioner further
alleges that the vaccine was administered within the United States, that she suffered the
residual effects of her injury for more than six months, and that there has been no prior
award or settlement of a civil action on her behalf as a result of her injury. Stipulation at
¶¶ 3-5; see Petition at ¶¶4, 27-29. “Respondent denies that petitioner sustained a
SIRVA Table injury; denies that the vaccine caused petitioner’s alleged shoulder injury,
or any other injury; and denies that her current condition is a sequelae 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  Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
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 May 12, 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 $45,000.00 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 lJNITED STATES COURT OF FEDERAL CLAIMS
                           OFFICE OF SPECIAL MASTERS


 KAREN THOMAS,

                Petitioner,                             No. I 8-l 733V
                                                        Chier Special Master C\)rcoran
 V.                                                     ECF

 SECRETARY OF HEALTH AND
 HUMAN SERVICES,

                Respondent.


                                         STIPULATION

       The parties hereby stipulate to the following matters:

       1. Karen Thomas ("petitioner"), filed a petition for vac.cinc compensation under the

National Vaccine Injury Compensation Program. 42 U.S.C. § J00aa-10 to 34 (the "Vaccine

Program"). The petition seeks compensation for injuries allegedly related to petitioner·s receipt

of an influenza ("flu·') 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 Octoher 13, 2017.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that she sustained a shoulder injury related to vaccine administration

(''SIRVA") within the time period set forth in the Table, or in the alternative, that her alleged

shoulder injury was caused by the vaccine. She further alleges that she experienced the residual

effects of this condition 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 alleged injury.

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

vaccine caused petitioner's alleged shoulder injury, or any other injury: and denies that her

current condition is a scquelae of a vaccine-related injury.

        7. Maintaining their above-stated positions. the parties neve1thcless now agree that the

issues between them shall be ~ettled and that a decision should be entered awarding the

compe-nsation described in paragraph 8 of this Stipulation.

        8. As soon as practicable after an entry of judgment rellecting a decision consistent with

the terms of this Stipulation, and after petitioner has liled an election to receive compensation

pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payment;

        A lump sum of $45,000.00 in the form of a chec.k payable to petitioner. This amount
        represents compensation for all damages that would be available under 42 U.S.C.
        § 300aa-l 5(a).

        9. As soon as practicable after th<: entry of judgment on entitlement in this case, anJ after

petitioner has filed both a proper and timely election to receive compensation pursuant to 42

U.S.C. § 300aa-2l(a)(l), and an application, the patties will submit to further proceedings before

the special master to award reasonable attorneys· fee~ and costs incurred in proceeding upon this

petition.

        I 0. Petitioner and her 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-15(g). to the extent that payment has been made or can reasonably be


                                                  2
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 ct seq.)), or by entities that provide health sc.·rvices on a pre-paid basis.

        11. Payment made pursuant to paragraph 8 anJ any amounts awarded pursuant to

paragraph 9 of this Stipulation will be made in accordance with 42 U.S .C. § 300aa-15(i), subject

to the availabi I ity of sufficient statutory funds.

        12. The parties and their attorneys fu1thcr agree and stipulate that, except for any award

for attorney's fees and litigation costs, and past unreimbursablc expenses, the money provided

pursuant to this Stipulation will be used solely for the benefit of petitionl'r as contemplated by a

strict construction of 42 U.S.C. § 3P0aa-l 5(a) and (d). and su~ject to the conditions of 42 U.S.C.

§ 300aa- l 5(g) and (h).

        13. In return for the payments dcscrib<:-d in paragraphs 8 and 9, petitioner, in her

individual capacit)', and on behalf of'her heirs, executors, administrators, successors or assigns,

does forever irrevocably and unconditionally release, acquit and discharge the United States and

the St'crctary of Health and Human St:rvices 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 Court of Federal Claims, under the Natiomil 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 tlti vaccination administered on October 13, 2017, as

alleged in a petition for vaccine compem,ation ti led on or about November 8, 2018, in the United


                                                       '
                                                       .)
States Co lilt of federal Claims as petition No. 18-1733 V.

         14. If petitioner should die prior to entry ofjudgment, 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 Cou1t of Federal Claims fails to enter judgment in conformity with a

decision that is in complete conformity with the terms or 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 Iiabi lily and

damages claimed under the National Childhood Vaccine Injury Act of I 986. 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 \)thcr than is herein expressly stated

and clearly agreed to. The patties fu,ther agree and understand that the award d(:scrihed in this

Stipulation may reflect~ compromise of the parties' respective positions as to liability and/or

amount   or damage:::, and fu1thcr, 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 her current disahilitics, or that petitioner suf'ft.:n:d an injury contained in the

Vaccine Injury Table.

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

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

                                       END OF STIPULATION


                                                    4
Respectfully subm ittcd,

PETlTIONER:



k~-~
KAREN THOMAS
                                 -
ATTOR~EY OF RECORD FOR                     AUTHORlZED REPRli~SENT ATIVE
PETITIONER:                                OF THE ATTORNEY GENERAL:



                                           C~                       ES L < - _ _
                                           Deputy Director
                                           Torts Branch
                                           Civil Division
                                           U.S. Department of Justice
                                           P.O. Box i46
                                           Benjamin Franklin Station
                                           Washington, DC 20044-0146

Al THORIZED REPRESENTATIVE
  1
                                           ATTORNEY 01• RECORD FOR
OF THE SECRln'ARY OF HEAL TH               RESPONDENT:
AND HUMAN SERVICES:                                         ~         J_~J
 wa.Ad_ :s:6~ 1            /J~
                                           -    ·~       ·-----------·---~ L . _
TAMARA OVERBY                              JENN d R L. ' ' NA UD
Acting Director, Division of Injury        Trial /\Horney
Compensation Programs                      Torts Branch
I lcalthcare Systems Bureau                Ci" ii Di\'ision
U. S. Department of I lealth and           U. S. Dcpartrm:nl of .lust ice
Humans Services                            P.O. Box 146
5600 Fishers Lane                          Benjamin franklin Station
Parklawn Building, Mail Stop 08N1468       Washington, DC 20044-0146
Rockville. MD 20857                        (202) 305-1586




Dated:   _'ij. l"l...,{. W_ __

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