         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 17-1339V
                                      Filed: July 1, 2019
                                        UNPUBLISHED


    GERALDINE ABEL,

                        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.


Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner.
Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

       On September 26, 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 right “full-thickness rotator cuff
tear that was caused in fact” by an influenza (“flu”) vaccination, administered on October
15, 2016. Petition at 1; Stipulation, filed July 1, 2019, at ¶¶ 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 as a result of her condition. Petition at
1, 6; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused petitioner’s
alleged right full-thickness rotator cuff tear, or any other injury, and further 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 sequelae of a vaccine-related injury. ” Stipulation at ¶
6.

        Nevertheless, on July 1, 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 $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.

       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

 GERALDINE ABEL.

                        Petitioner,

       V.                                                 No. l 7-1339V
                                                          Chief Special Master Dorsey
 SECRETARY OF HEALTH AND                                  ECF-SPU
 HUMAN SERVICES,

                        Respondent.



                                          STIPULATION

       The parties hereby stipulate to the following matters:

        1. Geraldine Abel ("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 the 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 in her right deltoid on October 15, 2016.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that she suffered a right "full-thickness rotator cuff tear that was

caused in fact" by the flu vaccine. Petitioner further alleges that she suffered the residual effects_

of these injuries for more than six months.

       5. Petitioner represents that there has been no prior award or settlement ofa civiJ action

for damages on her behalf as a result of her condition.
        6. Respondent denies that the flu vaccine caused petitioner's alleged right full-thickness

rotator cuff tear, or any other injury, and further denies that petitioner's current disabilities are

sequelae 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-2l(aXl), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

        A lump sum of$105,000.00 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).

        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-2l(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.

        10. 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,

Federal or State health benefits programs (other than Tit~ XIX of the Social Security Act (42

U.S.C.§ 1396 et seq.)), or entities that provide health services on a prepaid basis.




                                                   2
        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 descnbed in parajtraphs 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 natwe) 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-10 et seq., on accom1t of, or in any way growing out

ot: 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 15, 2016, as alleged by petitioner in a petition for vaccine compensation filed on

September 26, 2017, in the United States Court of Federal Claims as petition No. 17-l339V.

        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.

        I 5. If the special master tails to issue a decision in complete conformity with the terms

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


                                                     3
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 comp let~ 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

full-thickness rotator cuff tear, or any other injury, or that her current disabilities are sequelae of

her alleged vaccine-related injury.

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

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

I

                                      END OF STIPULATION
I




                                                  4
Respectfully submitted,

PETITIONER:


~{2'--LL
GERALDINE ABEL

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



                                                p~                   'i_L--.__
                COHAN,ESQ.                     C~        INE E. REEVES
ANAPOL WEISS                                   Deputy Director
One Logan Square                               Torts Branch
130 North 181h Stree~ Suite 1600               Civil Division
Philadelphia, PA 19103                         U.S. Department of Justice
Tel: (215) 790-4567                            P. 0. Box 146
                                               Benjamin Franklin Station
                                               Washington, DC 20044-0146


AUfflORIZED REPRESENTATIVE OF                  ATTORNEY OF RECORD FOR
THESECRETARYOFHEALTHAND                        RESPONDENT:
HUMAN SERVICES:



 WOA.d ;s,,=cf'--
_N_A_R_A_Y_A_N_N_A_I_~-M-.D-.-------- ~
                                               1li I J, ~
                                                        WATTS
Director                                       Senior Trial Attorney
Division oflnjury Compensation Programs        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. 0. Box 146
5600 Fishers Lane                              Benjamin Franklin Station
Parklawn Building, Stop 08N146B                Washington, DC 20044-0146
Rockville, MD 20857                            Tel: (202) 616-4099

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