     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-1344V
                                         UNPUBLISHED


    ANDREA DEPOALA NACE,                                      Chief Special Master Corcoran

                         Petitioner,                          Filed: December 5, 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)


Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.

Julia Marter Collison, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION ON JOINT STIPULATION1

        On August 31, 2018, Andrea DePoala Nace 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 left shoulder injuries
related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccination
she received on November 21, 2016. Petition at 1; Stipulation, filed December 4, 2019,
at ¶¶ 2-4. Petitioner further alleges that the vaccine was administered in the United
States, she experienced 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 alleged condition. Petition at 1, 4; Stipulation at ¶¶ 3-5. “Respondent denies that
petitioner sustained a SIRVA Table injury, and denies that the flu vaccine caused
petitioner’s alleged SIRVA or any other injury or her current condition. ” Stipulation at
¶ 6.

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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 ruling 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).
        Nevertheless, on December 4, 2019, 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 $50,000.00 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 STATES COURT OF FEDERAL CLAIMS
                           OFFICE OF SPECIAL MASTERS


 ANDREA DEPOALA NACE,

                         Petitioner,

        V.                                                 No. 18-1344V
                                                           Chief Special Master Corcoran
 SECRETARY OF HEALTH AND                                   ECF
 HUMAN SERVICES,

                        Respondent.



                                          STIPULATION

The parties hereby stipulate to the following matters:

        l.     Andrea DePoala Nace ("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 an injury allegedly related to

petitioner's receipt of an influenza ("flu'') vaccine, which is contained in the Vaccine Injury Table

(the "Table"), 42 C.F.R. § 100.3(a).

        2.     Petitioner received the flu vaccine on November 21, 2016.

        3.     The vaccine was administered in the United States.

       4.      Petitioner alleges that as a result of receiving the flu vaccine, she suffered a

Shoulder Injury Related to Vaccine Administration ("SIRVA"), and experienced the residual

effects of this 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 condition.

       6.      Respondent denies that petitioner sustained a SIRVA Table injury, and denies that

                                                I ofS
the flu vaccine caused petitioner's alleged SIRVA or any other injury or her current condition.

        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 $50,000.00 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-2l(a)(l) and an applicatio!l, 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 entities that provide health services on a pre-paid basis.

        11.      Payment made pursuant to paragraph 8 of this Stipulation, and any.amount

awarded pursuant to paragraph 9, will be made in accordance with 42 U.S.C. § 300aa-15(i),

subject to the availability of sufficient statutory funds.
                                                 2 of5 ·
        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 construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the

conditions of 42 U.S.C. § 300aa- l 5(g) and (h).

        13.     In return for the payments described in paragraph 8, and any amount awarded

pursuant to paragraph 9, petitioner, in her individual capacity, and on behalf of her heirs,

executors, administrators, successors, 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-l 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

administered on November 21, 2016, as alleged in a Petition filed on August 31, 2018, in the

United States Court   of Federal Claims as petition No. 18-1344V.
        14.    If petitioner should die prior to entry ofjudgment, this agreement shall be voidable

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

        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 t~rms 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 f~ll and complete negotiated settlement of liability and
                                                 3 of 5
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 SIRVA,

or any other injury.

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

executors, administrators, successors, and/or assigns.


                                      END OF STIPULATION




                                               4 ofS
 R.especd\dly submitted.


 Pl!.'rJTIONER:


'-ANDREA
   ~DEPOALA
         ~~~NACE



 ATTORNEY OP RECORD FOR                  AUTHORIZED REPRESENTATIVE
P.       ONER:                           OF THE ATTORNEY GF.NF.RAL:

                                        ~                     f_}-----
                                                R[NJ:::.l::., REF.YES
                                        t>eputy Director
                                        Tort~ Branch
                                        Civll DiYi!lon
                                        U.S. Department or.rustice
                                        P.O. f3ox 146
                                        Beajamin f rankfin Stalion
                                        \Vashin&ton. DC 20044-0146


AV'l'HOJUZft;D REPRESENTATIVE           ATTORi"'EY OF RECORD FOR
OF TH£ SECRETARY OF HF.ALTH             RESPONDENT:
AND HUMAN SERVTCRS:

 W&id·;_~,w,.,u~.n,,       #t,,          ~~
TAMARA OVERBY                           dd"r:iXM". COLLISON
Acting lJircctor, Di\llsion of          Trial AlCorney
Injury ComperisaHoJ'I Progro.tn:.       Torts Branch
Htnlthcarc: System~ nuccau              Civil Oi\li~io1>
U.S. Department of I lealth             U.S. Department of Justice
nnd I tuman Sen•lces                    V.O. Hox 146
5600 l•ishel's Lane                     Henjamin Franklin Station
Patklawn HuildinQ, Mail Stop 08-Nl46R   Wallhiniton, DC 20044-0146
Rockvlllc1 MD 20857                     (202) 305-0I02




Dated:   1c9(L-f /J 1
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