         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 17-1334V
                                      Filed: July 2, 2019
                                        UNPUBLISHED


    KAY B. HARVEY,

                        Petitioner,
    v.                                                       Special Processing Unit (SPU); Joint
                                                             Stipulation on Damages; Influenza
    SECRETARY OF HEALTH                                      (Flu) Vaccine; Shoulder Injury
    AND HUMAN SERVICES,                                      Related to Vaccine Administration
                                                             (SIRVA)
                       Respondent.


Glen Howard Sturtevant, Jr., Rawls Law Group, Richmond, VA, for petitioner.
Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for
respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On September 26, 2017, Kay B. Harvey (“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 shoulder
injury related to vaccine injury (“SIRVA”) as a result of an influenza (“flu”) vaccine she
received on or about October 14, 2014. Petition at 1; Stipulation, filed July 1, 2019, at
¶¶ 2, 4. Petitioner further alleges that she experienced the residual effects of this
condition for more than six months. Petition at 6-7; Stipulation at ¶ 4. “Respondent
denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused
petitioner’s alleged shoulder injuries, or any other injury; and denies that her current
condition is a sequelae of a vaccine-related injury.” Stipulation at ¶ 6.

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 Because this unpublished decision contains a reasoned explanation for the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).
2
 National 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 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 $140,000.00, 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

                                               )
KAY B. HARVEY,                                 )      No. 17-1334V
                                               )      Chief Special Master Dorsey
               Petitioner,                     )      ECF
                                               )
        v.                                     )
                                               )
SECRETARY OF HEALTH AND                        )
HUMAN SERVICES,                                )
                                               )
               Respondent.                     )


                                            STIPULATION

       The parties hereby stipulate to the following matters:

        1. 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 vaccination on or about October 14, 2014.

       3. The vaccine was administered within the United States.

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

("SIRVA") within the time period set forth in the Table, or in the alternative, that her shoulder

injury was caused by the vaccine. She further alleges that she experienced the residual effects of

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

vaccine caused petitioner's alleged shoulder injuries, or any other injury; and denies that her

current condition is a 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 tenns of this Stipulation, and after petitioner has filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa-21(a)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

        A lump sum of $140,000.00 in the fonn 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)(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 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 and any amoimts awarde<:I 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 attorney's fees and litigation costs, and past unreimbursable expenses, the money provided

pur~uant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a

strict construction of 42 U.S.C. § 300aa-l 5(a) and (d), and subject to the conditions of 42 U.S.C.

 § 300aa-15(g) and (h).

         13. In return for the payment described in paragraphs 8 and 9, petitioner, in her

individual capacity, and on behalf of her heirs, executors, administrators, successors and/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 vaccine administered on or

about October 14, 2014, as alleged by petitioner in a petition for vaccine compensation filed on

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

1334V.

         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 confo1mity 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 patty.

        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 SIRVA,

and/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,

PETITIONER:




ATTORNEY OF RECORD FOR                             AUTHORIZED REPRESENTATIVE



                    s~
PETITIONER:                                        0 THE ATTORNEY GENERAL:
                                                                                L.l._ __
0~
GLEN H. STURTEVANT, JR.                                        EE.REEVES
Rawls Law Group
211 Rocketts Way, Suite 100
Richmond, VA 23231                                 Civil Division
(804) 622-0675                                     U.S. Department of Justice
                                                   P.O. Box 146
                                                   Benjamin Franklin Station
                                                   Washfogtou. DC 20044-0146


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


 uJcUd s~~J:!-4.,
NARA YAN NAIR, M D                                 DANIEL A. PRINCIPATO
Director, Division of Injury Compensation          Trial Attorney
         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 Seivices       P.O. Box 146
5600 Fishers Lane                                  Benjamin Franklin Station
Parklawn Building, Mail Stop 08N146B               Washington, DC 20044-0146
Rockville, MD 20857                                (202) 616-3662


Dated:    7 /t / ;l. () l'f



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