         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-1978V
                                      Filed: April 17, 2019
                                         UNPUBLISHED


    KENNETH CUEVAS,

                        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.


Amber Diane Wilson, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On December 19, 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 he suffered a left shoulder injury casually related
to the influenza vaccination he received on October 19, 2016. Petition at 1, ¶¶ 1, 12;
Stipulation, filed Apr. 17, 2019, at ¶¶ 1-2, 4. Petitioner further alleges that he received
the vaccination in the United States, has suffered the residual effects of his injury for
more than six months, and that neither he nor any other party has filed a civil action or
received compensation for his injury alleged as vaccine caused. Petition at ¶¶ 1, 13,
16-17; Stipulation at ¶¶ 3-5. “Respondent “denies that petitioner sustained the onset of
a SIRVA Table injury within the time period set forth in the Table; and 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 shoulder injury and residual effects, or any other
injury.” Stipulation at ¶ 6.

        Nevertheless, on April 17, 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
__________________________________________
                                           )
KENNETH CUEVAS,                            )
                                           )
                  Petitioner,             )
                                          )   No. 17-1978V (ECF)
v.                                        )   Chief Special Master Dorsey
                                          )
SECRETARY OF HEALTH                       )
AND HUMAN SERVICES,                       )
                                          )
                  Respondent.             )
__________________________________________)

                                          STIPULATION

       The parties hereby stipulate to the following matters:

       1.      Kenneth Cuevas (“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 sustained following

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 October 19, 2016.

       3.      The vaccine was administered within the United States.

       4.      Petitioner alleges that he sustained the first symptom or manifestation of onset of

a left Shoulder Injury Related to Vaccine Administration (“SIRVA”) within the time period set

forth in the Table, or in the alternative that his left shoulder injury was caused-in-fact or

significantly aggravated by his receipt of the flu vaccine. Petitioner further alleges that he

experienced the residual effects of his injury for more than six months.

       5.      Petitioner represents that there has been no prior award or settlement of a civil
action for damages as a result of his condition.

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

within the time period set forth in the Table; and denies that the flu vaccine caused petitioner’s

alleged shoulder injury and residual effects, or any other 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)(1), the Secretary of Health and Human

Services will issue the following vaccine compensation payment:

               A lump sum of $35,000.00 in the form of a check payable to petitioner,
               Kenneth Cuevas, which amount represents compensation for all damages
               that would be available under 42 U.S.C. § 300aa-15(a).

       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)(1), 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 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

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



                                                   2
et seq.), or by entities that provide health services on a pre-paid basis.

         11.    Payment made pursuant to paragraph 8 and 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 availability of sufficient statutory funds.

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

award for attorneys’ fees and litigation costs, 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-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 or assigns,

does forever irrevocably and unconditionally release, acquit and discharge the Secretary of

Health and Human Services and the United States of America 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 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 vaccine administered on

October 19, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or

about December 19, 2017, in the United States Court of Federal Claims as petition No. 17-

1978V.

         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.


                                                     3
       15.     If the special master fails to issue a decision in complete conformity with the

terms of this Stipulation, or if the 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 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 to 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 of

America or the Secretary of Health and Human Services that petitioner’s alleged SIRVA and

residual effects, or any other injury, were caused by the flu vaccine.

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

petitioner’s heirs, successors and/or assigns.

                                     END OF STIPULATION

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