         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 18-1232V
                                     Filed: August 30, 2019
                                         UNPUBLISHED


    DALE KILPATRIC,

                        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.


Brenton Aaron Elswick, Maglio Christopher & Toale, PA, Seattle, WA, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On August 16, 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 a left shoulder injury causally related
to the influenza vaccination he received on September 14, 2016. Petition at ¶¶ 1, 8, 9;
Stipulation, filed Aug. 30, 2019, at ¶¶ 1-2, 4. Petitioner further alleges that he has
suffered the residual effects of his injury for more than six months and that neither he
nor any other party has brought an action or received compensation for his injury,
alleged as vaccine caused. Petition at ¶¶ 10, 12-13; Stipulation at ¶¶ 3-5. “Respondent
denies that petitioner sustained a Table SIRVA injury; denies that the vaccine caused or
significantly aggravated petitioner’s alleged injury or any other injury; and, denies that


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).
petitioner’s current disabilities are the result of a vaccine-related injury.” Stipulation at ¶
6.

        Nevertheless, on August 30, 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 $70,000.00 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
___________________________________
                                      )
DALE KILPATRIC,                       )
                                      )
               Petitioner,            )    No. 18-1232V      ECF
                                      )
            v.                        )    Chief Special Master Dorsey
                                      )
SECRETARY OF HEALTH                   )
AND HUMAN SERVICES,                   )
                                      )
              Respondent.             )
___________________________________ )

                                          STIPULATION

       The parties hereby stipulate to the following matters:

       1.    Petitioner, Dale Kilpatric, 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 the influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42

C.F.R. § 100.3(a).

       2.    On September 14, 2016, petitioner received a flu vaccine in the left arm.

       3.    The vaccine was administered within the United States.

       4.    Petitioner alleges that, as a result of receiving the vaccine, he suffered the onset of a

left shoulder injury related to vaccine administration (“SIRVA”) within the Table timeframe, or

alternatively, that his vaccine caused his left shoulder injury, and that he experienced symptoms

of the injury for more than six months.

       5.    Petitioner represents that there has been no prior award or settlement of a civil action


                                                   1
for damages as a result of his alleged injuries.

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

vaccine caused or significantly aggravated petitioner’s alleged injury or any other injury; and,

denies that petitioner’s current disabilities are the result 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 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 $70,000.00, 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), including past unreimbursed expenses and pain and
                 suffering.

        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. Section 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

                                                   2
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.

       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 his

individual capacity and on behalf of his 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, 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 vaccine administered on September 14, 2016, as alleged by

petitioner in a petition for vaccine compensation filed on or about August 16, 2018, in the United

States Court of Federal Claims as petition No. 18-1232V.


                                                  3
       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 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 petitioner sustained a Table injury, or that the

vaccine either caused or significantly aggravated petitioner’s alleged 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




                                                  4
 Respectfully submitted,




ATTORNEY OF RECORD FOR
                                      L.               AUTHORIZED REPRESENTATIVE
PETITIONER:                                            OF THE ATTORNEY GENERAL:


~~-
BRENTON A. ELSWICK
                                                           ~~c____ _
Maglio Christopher & Toale, P.A.                       Deputy Director
70 I 5th Avenue, Suite 3505                            Torts Branch
Seattle, WA 98104                                      Civil Division
Tel: (888) 952-5242                                    U.S. Department of Justice
                                                       P.O. Box 146
                                                       Benjamin Franklin Station
                                                       Washington, DC 20044-0146

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

  wcuat sQ~                                ~'l,
                                                      -~
  TAMARA OVERBY                                        DARRYL R. WISHARD
  Acting Director, Division of Injury                  Senior Trial Attorney
    Compensation Programs                              Torts Branch
  Healthcare Systems Bureau                            Civil Division
  U.S. Department of Health                            U.S. Department of Justice
    and Human Services                                 P.O. Box 146
· 5600 Fishers Lane                                    Benjamin Franklin Station
  Parklawn Building, Mail Stop 08N146B                 Washington, DC 20044-0146
  Rockville, MD 20857                                  Tel: (202) 616-4357


Dated:   _ 8__,_/_J   t::.
                      __,_         1-
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