     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-637V
                                         UNPUBLISHED


    LOVELY VARUGHESE,                                         Chief Special Master Corcoran

                         Petitioner,                          Filed: May 6, 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)


Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner.

Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION ON JOINT STIPULATION1

        On May 3, 2018, Lovely Varughese 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 an influenza (“flu”) vaccine administered on
October 29, 2013. Petition at 1; Stipulation, filed May 5, 2020, at ¶¶ 1-2, 4. Petitioner
further alleges that the vaccine was administered in 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 for damages on her behalf as a result of her
condition. Petition at 1, 6; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner
sustained a SIRVA Table injury and that the flu vaccine caused petitioner any other
injury or her current condition.” 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 May 5, 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 $105,000.00 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

                                                   )
LOVELY VARUGHESE,                                  )
                                                   )
               Petitioner,                         )
                                                   )      No. 18-637V
v.                                                 )      Chief Special Master Corcoran
                                                   )      ECF
SECRETARY OF HEALTH AND HUMAN                      )
SERVICES,                                          )
                                                   )
               Respondent.                         )
                                                   )

                                         STIPULATION

       The parties hereby stipulate to the following matters:

       1. Lovely Varughese, 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 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 the flu immunization on October 29, 2013.

       3. The vaccination was administered within the United States.

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

(“SIRVA”) within the time period set forth in the Table, and further alleges that she experienced

the residual effects of her injury 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 condition.

       6. Respondent denies that petitioner sustained a SIRVA Table injury and that the flu
vaccine caused petitioner any other injury or her current condition.

       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 $105,000.00 for pain and suffering in the form of a check payable
       to petitioner. This 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 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

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




                                                  2
        11. Payment made pursuant to paragraph 8 of this Stipulation 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, 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-15(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 or 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 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 October 29, 2013, as

alleged by petitioner in a petition for vaccine compensation filed on or about May 3, 2018, in the

United States Court of Federal Claims as petition No. 18-637V.

        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 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 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 or the

Secretary of Health and Human Services that the flu vaccine caused petitioner’s alleged shoulder

injury or any other injury.

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

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

                                     END OF STIPULATION
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llespeclfully submi~
-PETmONER:



 L~L~~~?
                                                              EE. REEVES
Anapol ciss
One Logan Square
130 North 18th Street, Suite 1600                  Civil Division
Philadelphia. PA 19103                             U.S. Department of Justice
Tel: (215) 790-4567                                P.O. Box 146
                                                   Benjamin Franklin Station
                                                   Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE                                ATTORNEY OF RECORD FOR
OF THE SECRETARV OF HEALTH                               JlESPONDENT:
AND HUMAN SERVICES:                                     ~C.f2..u-t,.~

                                                             b'.j ~                   i.____
TAMARA OVERBY                                            SARAHC~CAN
Acting Director, Division of Injury Compensation         Trial Attorney
       Programs (DJCP)                                   Torts Branch
Healthcare Systems Bureau                                Civil Division
Health Resources and Services Administration             U.S. Department of Justice
U.S. Department of Health and Human Services             P.O. Box 146
5600 Fishers Lane                                        Benjamin Franklin Station
Parklawn Building, Mail Stop 08N 146B                    Washington, DC 20044-0146
Rockville, MD 20857                                      Tel: (202) 514-9729



Dated:   4: \ e?. +l ol,o


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