         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 17-0753V
                                     Filed: August 2, 2019
                                        UNPUBLISHED


    AGNES JOHNS,

                        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.


Jessica Anne Olins, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Glenn Alexander MacLeod, U.S. Department of Justice, Washington, DC, for
      respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

       On June 7, 2017, 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 a shoulder injury related to vaccine
administration (“SIRVA”) casually related to the influenza vaccination she received on
September 17, 2014. Petition at 1, ¶¶ 1, 8; Stipulation, filed Aug. 2, 2019, at ¶¶ 1-2, 4.
Petitioner further alleges that she received the influenza vaccination in the United
States, that she suffered the residual effects of her injuries for more than six months,
and that neither she nor any other party has filed a civil action or received compensation
for her injuries, alleged as vaccine caused. Petition at ¶¶ 1, 9, 12-13; Stipulation at ¶¶
3-5. “Respondent denies petitioner sustained a Table SIRVA; denies that the flu

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).
vaccine caused petitioner’s alleged right shoulder injuries, or any other injury; and
further denies that her current disabilities are a sequela of a vaccine-related injury.”
Stipulation at ¶ 6.

        Nevertheless, on August 2, 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 $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.

       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
                 IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                            OFFICE OF SPECIAL MASTERS

*************************
                        *
AGNES JOHNS,                                   *
                                               *
         Petitioner,                           *
                                               *
v.                                             *       No. 17-753V (ECF)
                                               *       CHIEF' SPECIAL MASTER
                                               *       NORA BETH DORSEY
SECRETARY OF HEALTH                            *
AND HUMAN SERVICES,                            *
                                               *
         Respondent                            *
********~****************

                                           STIPULATION

        The parties hereby stipulate to the following matters:

         1. 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 r,eceipt of trivalent influenza

("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R.

§ I 00.3(a).

        2. Petitioner received the flu vaccine on or about September 17, 2014.

        3. The vaccine was administered within the United States.

        4. Petitioner alleges·that she suffered a right shoulder injury related to vaccine

administration (SIRVA), including hypertrophic tendinosis of the supraspinatus, infraspinatus,

and subscapularis tendons, as a consequence of the flu immunization she received on or about

September 17, 2014, and further alleges that she suffered the residual effects of this injury for

more than six months.


                                             Page 1 ofS
         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.

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

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

 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 1;1n 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 $35,000.00 which amount represents compensation for all elements of
        damages available to petitioner under 42 U.S.C. § 300aa- l 5(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-2 l(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.

        I 0. Petitioner and her 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,




                                              Pagel ofS
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-15(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-15(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa- l 5(g) and (h).

        13. In return for the payments described in paragraphs 8 and 9, petitioner, in her

individual capacity, and on behalf of her 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-lO 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 September J7, 2014, as alleged by petitioner in a petition for vaccine compensation filed

on or about June 7, 2017, in the United States Court of Federal Claims as petition No. l 7-753V.




                                              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 confonnity with the terms

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

confonnity with a decision that is in complete conformity with the tenns 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 right

shoulder injuries, or any other injury or 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 assigns.

                                      END OF STIPULATION




                                             Page 4 of 5
Respectfully submitted,


PETITIONER:


A~~~
ATTORNEY OF RECORD FOR                               AUTHORIZED REPRESENTATIVE
PETI                                                 OF THE ATTORNEY GENERAL:
                                                       ( o..mo..viw
                                                                 t.. ~
        A ANNE OLINS, ESQ.                                 ¥tl4~Ad~
                                                     CATHARINEE.REEVE
Ma 10 Christopher and Toale, PA (DC)                 Deputy Director
1775 Pennsylvania Avenue, NW                         Torts Branch
Suite 225                                            Civil Division
Washington, DC 20006                                 U.S. Department of Justice
Tel: (202) 795 -8541                                 P. 0. Box 146
                                                     Benjamin Franklin Station
                                                     Washington, D.C. 20044-0146


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



TAMARA OVERBY
Acting Director, Division of Injury                  Senior Trial Counsel
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-08Nl46B
Rockville, MD 20857


                                                        Dated:   r/9_1/ r
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