        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-468V
                                    Filed: January 15, 2016
                                        UNPUBLISHED

****************************
ELIZABETH J. ZDROIK,                   *
                                       *
                    Petitioner,        *       Joint Stipulation on Damages;
                                       *       Influenza (“Flu”) Vaccine;
                                       *       Left Shoulder Injury;
SECRETARY OF HEALTH                    *       Special Processing Unit (“SPU”)
AND HUMAN SERVICES,                    *
                                       *
                    Respondent.        *
                                       *
****************************
Ramon Rodriquez, III, Rawls McNelis and Mitchell, P.C., Richmond, VA, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On May 8, 2015, 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 left shoulder injury as a result of her
October 16, 2012 influenza [“flu”] vaccination. Petition at 1; Stipulation, filed 1/13/2016,
¶¶ 2, 4. Petitioner further alleges that she has experienced the symptoms of her injury
for more than six months, and has received no prior award or settlement of a civil action
for damages as a result of her injury. Petition, ¶¶ 10-11; Stipulation, ¶¶ 4-5.
“Respondent denies that the flu vaccine either caused or significantly aggravated
petitioner’s alleged injury or any other injuries, and denies that petitioner’s current
disabilities are the result of a vaccine-related injury.” Stipulation, ¶ 6.

       Nevertheless, on January 13, 2016, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. The undersigned

1
  Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended
at 44 U.S.C. § 3501 note (2006)). 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.
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).
finds the stipulation reasonable and adopts it as the decision of the Court in awarding
damages, on the terms set forth therein.

        The parties stipulated that petitioner shall receive the following compensation:

        A lump sum of $140,000.00 in the form of a check payable to petitioner.
        Stipulation, ¶ 8. This amount represents compensation for all items of damages
        that would be available under 42 U.S.C. § 300aa-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
            Case 1:15-vv-00468-UNJ Document 29 Filed 01/13/16 Page 1 of 5




                 IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                           OFFICE OF SPECIAL MASTERS

                                                 )
ELI ZA BETH J. Z DROIK,                          )
                                                 )
                      Petitioner,                )       No. I 5-468V     ECF
                                                 )
                 v.                              )       Chi ef Special Master Dorsey
                                                 )
SECRETARY OF HEALTH                              )
AND HUMAN SERV ICES,                             )
                                                 )
                  Respondent.                    )
~~~~~~~~~-)

                                            STIPULATION

       The parties hereby stipu late to the fo llowing matters:

        I.    Petitioner, Elizabeth J. Zdroik, filed a petition for vaccine compensation under the

National Vacc ine Injury Compensati on Program, 42 U.S.C. §§ 300aa-I 0 to 34 (the "Vaccine

Program").     The petition seeks compensation for injuries alleged ly related to petitioner's receipt

of the influenza ("flu") vacc ine, which is contai ned in the Vaccine Injury Table (the "Table"), 42

C.F. R. § I00.3(a).

       2.    On October I6, 20 12, petitioner received the flu vaccine in the left deltoid.

       3. T he flu vaccine was administered within the United States.

       4.     Petitioner alleges that, as a result of receiving the flu vacc ine, she suffered from a left

shoulder injury, and that she 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

for damages as a result of her alleged injuries.

       6.     Respondent denies that the flu vaccine either caused or significantly aggravated
             Case 1:15-vv-00468-UNJ Document 29 Filed 01/13/16 Page 2 of 5




petitioner's al leged injury or any other injuries, and den ies that petitioner's current disab ilities

are the result of a vaccine-related injury.

        7.     Maintaining their above-stated pos itions, the parties nevertheless now agree that the

issues between them shal l 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 deci sion consistent

with the term s of this Stipulation, and after petit ioner has tiled an election to receive

compensation pursuant to 42 U.S.C. § 300aa-2 I(a)( I), the Secretary of Health and Human

Services will issue the fo llowing vaccine compensation payment:

                  A lump sum of$ 140,000.00, in the form ofa check payable to petitioner. Th is
                  amount represents compensation for all damages that would be avai lable 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 petiti oner has tiled both a proper and timely election to receive compensation pursuant to

42 U.S.C. § 300aa-2l(a)( 1), and an application , the parties will submit to further proceedings

before the special master to award reasonab le attorneys' fees and costs incurred in proceeding

upon this petition.

        I0.     Petitioner and her attorney represent that compensation to be provided pursuant to

this Stipulation is not for any items or serv ices for wh ich the Program is not primarily liable

under 42 U.S.C. § 300aa-l 5(g), to the extent that payment has been made or can reasonab ly be

expected to be made under any State compensation program s, 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.

        I I.    Payment made pursuant to paragraph 8 of this Stipulation, and any amou nts

                                                    2
           Case 1:15-vv-00468-UNJ Document 29 Filed 01/13/16 Page 3 of 5




awarded pursuant to paragraph 9 of thi s Stipulation, will be made in accordance with 42 U.S.C.

§ 300aa- 15( i), subject to the avai labi Iity of sufficient statutory fund s.

        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 Stipul ation wi ll 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 payments described in paragraphs 8 and 9, petitioner, in her

individual capacity and on behalfof her heirs, executors, administrators, successors or assigns,

does forever irrevocably and unconditionally release, acq uit and discharge the United States and

the Secretary o f Health and Human Services from any and alI 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 cou ld be timely brought in

the Court of Federa l Claims, und er the National Vaccine Injury Compensation Program, 42

U.S.C. § 300aa-I 0 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 admin istered on October 16, 201 2, as al leged by

petitioner in a petition for vaccine compensation filed on or about May 8, 20 I 5, in the United

States Court of Federal C laims as petition No. I 5-468V.

         14.    If petitioner should die prior to entry of judgment, this agreement shall be vo idab le

upon proper notice to the Court on behalfof either or both of the parties.

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

of this Stipulation or if the Court of Federal Claims fa ils to enter j udgment in conformity with a

decision that is in complete conformity with the terms of th is Stipulati on, then the parties'

                                                      3
          Case 1:15-vv-00468-UNJ Document 29 Filed 01/13/16 Page 4 of 5




settlement and this Stipulation shall be voidable at the sole discreti on of either party.

        16. Thi s 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 parti es further agree and understand that the award described in thi s

stipulation may reflect a compromise of the parties' respective positions as to liab il ity and/or

amount of damages, and further, that a change in the nature of the injury or conditi on or in the

items of compensation sought, is not grounds to modify or rev ise this agreement.

        17. Th is Stipul ation shall not be construed as an adm ission by the United States or the

Secretary of Health and Human Services that the flu vaccine rece ived by petiti oner either caused or

significantly aggravated petitioner's alleged injury, or any other injury or disab ility.

        18. All rights and obli gations of petitioner hereunder shall apply equal ly to petiti oner's

heirs, executors, adm ini strators, successors, and/or ass igns.

                                      END OF STIPULATION




                                                    4
        Case 1:15-vv-00468-UNJ Document 29 Filed 01/13/16 Page 5 of 5




    Respectfully submitted,

    PETITIONER:




    ELIZABETH J. Z

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




                           Hl,M.D.
                                                U11
                                                 CEN £~   JATANOSKI
       ...,...,~~~ is  1tchell                  Deputy Director
    211 Rocketts Way, Suite JOO                 Torts Branch
    Richmond, VA 23231                          Civil Division
    (804) 782-0608                              U.S. Department of Justice
                                                P.O. Box. 146
                                                Benjamin Franklin Station
                                                Washington, DC 20044-0146

    AUTHORIZED REPRESENTATIV E                  ATTORNEY OF RECORD FOR
    OF THE SECRETARY OF HEALTH                  RESPONDENT:
    AND HUMAN SERV CES:

                         /            ...
                       ~--;;;_
                Al OUSTON, M.D., M.P.H, FAAP    DARRYLR. WISHARD
    Director, Division of lnjury                Senior Trial Attorney
      Compensntion Programs (DICP)              Torts Branch
    Healthcare Systems Bw·eau                   Civil Division
    U.S. Department of Health and               U.S. Department of Justice
      Human Services                            P.O. Box 146
    5600 Fishers Lane                           Benjamin Franklin Station
    Parklawn Building, Mail Stop l IC-26        Washington, DC 20044-0146
    Rockville, MD 20857                         (202) 616-4357


    Dated:        , ~_._{_1-"'- - -
             _ r_(_

                                            5




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