         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 18-050V
                                        UNPUBLISHED


    JESSICA OTT,                                             Chief Special Master Corcoran

                        Petitioner,                          Filed: November 8, 2019
    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)


Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.

Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.


                              DECISION ON JOINT STIPULATION1

        On January 10, 2018, Jessica Ott 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 right shoulder injury related to
vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccination she
received on October 24, 2016. Petition at 1; Stipulation, filed November 7, 2019, at ¶¶
3, 4. Petitioner further alleges that she experienced the residual effects of her injury for
more than six months. Petition at 4; Stipulation at ¶ 4. Respondent states that
“petitioner is entitled to compensation under the terms of the Vaccine Act
for her SIRVA.” Stipulation at ¶ 7.

       Nevertheless, on November 7, 2019, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. I find the

1I intend 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, I agree that the identified
material fits within this definition, I will redact such material from public access. Because this unpublished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).
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).
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, the I award the following
compensation:

        A lump sum of $90,000.00 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 ST ATES COURT OF FEDERAL CLAIMS
                         OFFICE OF SPECIAL MASTERS

                                                    )
JESSICA OTT,                                        )
                                                    )
                Petitioner,                         )
                                                    )    No. 18-S0V
 V.                                                 )    Chief Special Master Corcoran
                                                    )    ECF
 SECRETARY OF HEALTH AND HUMAN                      )
 SERVICES,                                          )
                                                    )
     Respondent.                                    )
_________________                                   )

                                            STIPULATION

       The parties hereby stipulate to the following matters:

        l . Jessica Ott, 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 the flu vaccine on or about October 24, 2016.

        3. The vaccination was administered within the United States.

        4. Petitioner sustained a right shoulder injury related to vaccine administration

("SIRVA") within the time period set forth in the Table, and experienced the residual effects of

her injury for more than six months.

        5. There is not a preponderance of evidence demonstrating that petitioner's condition is

due to a factor unrelated to vaccination.
       6. 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.

       7. Accordingly, petitioner is entitled to compensation under the terms of the Vaccine Act

for her S[RVA. Therefore, 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-2 l (a)( l ). the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

        A lump sum of $90,000.00 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-l 5(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   US C

§ 300aa-2 I<a)(l ), and an application, the parties will submit to fmther 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- l 5(g), including State compensation programs, insurance policies,

Federal or State health benefits programs ( other than Title XlX 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 of this Stipulation and any amounts awarded

pursuant to paragraph 9 will be made in accordance with 42    U.S.C. § 300aa-l 5(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 constmction of 42   U.S.C. § 300aa-15(a) and @ , and subject to the conditions of 42 U,S,C.

§ 300aa-1 5(~) and ili).

        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 iITevocably 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-10 et seq., on account of, or in any way growing out

of, any and all known or unkno\vn, 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 October 24, 2016, as alleged by petitioner in a petition for vaccine compensation filed on

or about January 10, 2018, in the United States Court of Federal Claims as petition No. 18-50V.

        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 United States 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 do any act or thing other than is herein expressly stated

and clearly agreed to. The parties fm1her 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 fm1her, 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.     The Stipulation shall not be constmed as an admission by the United States or the

Secretary of Health and Human Services that the flu vaccine caused petitioner's SIRVA or any

other injury or her current condition; however, petitioner has satisfied the Table criteria to

establish entitlement to compensation.

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

petitioner's heirs, executors, administrators, successors, and/or assigns.

                                      END OF STIPULATION

I

I

I

I



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Respectfully submitted,


PETITIONER:




ATTORNEY OF RECORD FOR                        AUTHORIZED REPRESENTATIVE
PETITIONER:                                   OF THE ATTORNEY GENERAL:
                                              c~~             t.
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~o\"'                 uf )'\J."t~e,J')Q            ~ ~~ L-Pau<,v-
SHEALENE MANCUSO, ESQ.                        cATHARINE E. REEVES
MULLER BRAZIL, LLP                            Deputy Director
715 Twining Road                              Torts Branch
Suite 208                                     Civil Division
Dresher, PA 19025                             U. S. Department of Justice
Tel: (215) 885-1655                           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                  Senior Trial Attorney
Injury Compensation Programs (DICP)           Torts Branch, Civil Division
Healthcare Systems Bureau                     U.S. Department of Justice
U.S. Department of Health                     P.O. Box 146
and Human Services                            Benjamin Franklin Station
5600 Fishers Lane                             Washington, D.C. 20044-0146
Parklawn Building, Stop-08N146B               Tel: (202) 919-6599
Rockville, MD 20857




Dated:      // - 1 -   I   q


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