     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-0422V
                                         UNPUBLISHED


    HARRY D. TANNER, JR.,                                     Chief Special Master Corcoran

                         Petitioner,                          Filed: April 15, 2020
    v.

    SECRETARY OF HEALTH AND                                   Special Processing Unit (SPU); Joint
    HUMAN SERVICES,                                           Stipulation on Damages; Tetanus
                                                              Diphtheria acellular Pertussis (Tdap)
                        Respondent.                           Vaccine; Shoulder Injury Related to
                                                              Vaccine Administration (SIRVA)


William E. Cochran, Jr., Black McLaren Jones Ryland & Griffee, P.C., Memphis, TN , for
petitioner.

Gabrielle Manganiello Fielding, U.S. Department of Justice, Washington, DC, for
respondent.


                               DECISION ON JOINT STIPULATION1

      On March 22, 2018, Harry D. Tanner, Jr. 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of a tetanus diphtheria acellular pertussis (“Tdap”)
vaccination administered on March 24, 2017. Petition at 2; Stipulation, filed April 14,
2020, at ¶¶ 2, 4. Petitioner further alleges that the vaccination was administered within
the United States, that he experienced the residual effects of this 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 his alleged condition. Petition at 1, 8; Stipulation at ¶¶ 3-5.
“Respondent denies that petitioner sustained a SIRVA Table injury and further denies

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
that the Tdap immunization is the cause of petitioner’s alleged shoulder injury, and/or
other injuries. ” Stipulation at ¶ 6.

       Nevertheless, on April 14, 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 $117,010.15 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

                                               )
 HARRY D. TANNER, JR.,                         )      No. 18-422V
                                               )      Chief Special Master Corcoran
                Petitioner,                    )      ECF
                                               )
        v.                                     )
                                               )
 SECRETARY OF HEALTH AND                       )
 HUMAN SERVICES,                               )
                                               )
                Respondent.                    )


                                            STIPULATION

        The parties hereby stipulate to the following matters:

        l. 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 Tdap vaccine,

which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a).

       2. Petitioner received the Tdap vaccination on or about March 24, 2017.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that the vaccine caused him to develop a shoulder injury related to

vaccine administration ("SIRVA"), and that he 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 his condition.
            6. Respondent denies that petitioner sustained a SIRVA Table injury and further denies

 that the Tdap immunization is the cause of petitioner's alleged shoulder injury, and/or any other

 injuries.

            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)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

        A lump sum of$117,010.15 in the form ofa 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.

        I 0. Petitioner and his 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-1 S(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 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 attorney's fees and litigation costs, and past unreimbursable 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 payment described in paragraphs 8 and 9, petitioner, in his

individual capacity, and on behalf of his 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-IO 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 Tdap vaccine administered on or

about March 24, 2017, as alleged by petitioner in a petition for vaccine compensation filed on or

about March 22, 2018, in the United States Court of Federal Claims as petition No. 18-422V.

        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 confonnity 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 Tdap vaccine caused petitioner's alleged

shoulder injury, and/or any other injury.

        I 8. 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
PETITIONER:                                     F THE ATTORNEY GENERAL:
                                                 ~              ~   <£_L____
WILLl /{fof;-                  ()
Black Mcclaren Jones Ryland & Grifee
                                                 ATHARINE E. REEVES
                                               Deputy Director
530 Oak Court Drive, Suite 360                 Torts Branch
Memphis, TN 38117                              Civil Division
(901) 762-0535                                 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
AND HUMAN SERVICES:



TAMARA OVERBY                                  GABI,LE~IELDING
Acting Director, Division ofJnjury             Assistant Director
 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.O. Box 146
5600 Fishers Lane                              Benjamin Franklin Station
Parklawn Building, Mail Stop 08N 146B          Washington, DC 20044-0146
Rockville, MD 20857                            (202) 616-4359
                                               gabrielle.fielding@usdoj.gov


Dated:   '+[ 1~{~


                                           5
