     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 17-717V
                                         UNPUBLISHED


    DENNIS SMALLEY,                                           Chief Special Master Corcoran

                         Petitioner,                          Filed: April 16, 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)


Joseph Alexander Vuckovich, Maglio Christopher & Toale, PA, Washington, DC, for
petitioner.

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


                               DECISION ON JOINT STIPULATION1

        On May 31, 2017, Dennis Smalley 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”) vaccine administered on April 22, 2016. Petition at 1-2; Stipulation, filed April
14, 2020, at ¶¶ 1-2, 4. Petitioner further alleges that the vaccine was administered
within the United States; that he suffered the residual effects of his alleged injury for
more than six months; and that there has been no prior award or settlement of a civil
action for damages on his behalf as a result of his condition. Petition at 1-2; Stipulation
at ¶¶ 3-5. “Respondent denies that petitioner sustained a SIRVA Table injury; denies
that the vaccine caused petitioner’s alleged shoulder injuries, or any other injury; and

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
denies that his current condition is a sequelae of a vaccine-related injury. ” 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 $67,500.00 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

_________________________________________
                                          )
DENNIS SMALLEY,                           )
                                          )
                  Petitioner,             )
                                          )                   No. 17-717V
v.                                        )                   Chief Special Master Dorsey
                                          )                   ECF
SECRETARY OF HEALTH AND                   )
HUMAN SERVICES,                           )
                                          )
                  Respondent.             )
__________________________________________)

                                         STIPULATION

       The parties hereby stipulate to the following matters:

       1. Dennis Smalley, 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 Tetanus-Diphtheria-acellular Pertussis (“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 vaccine on or about April 22, 2016.

       3. The vaccination was administered within the United States.

       4. Petitioner alleges that he sustained a Shoulder Injury Related to Vaccine

Administration (“SIRVA”) following his Tdap vaccine, within the time period set forth in the

Table, or in the alternative, that his alleged shoulder injuries were caused by the vaccine. He

further alleges that he experienced the residual effects of his alleged injuries for more than six

months after vaccine administration.
       5. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on his behalf as a result of his 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 his

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 terms of this Stipulation, and after petitioner has filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

       A lump sum of $67,500.00 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-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)(1), 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 his attorney represent that compensation to be provided pursuant to

this Stipulation is not for any items or services for which the Program is not primarily liable

under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be

expected to be made under any State compensation programs, insurance policies, Federal or



                                                 2
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.

        11. Payments made pursuant to paragraphs 8 and 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 attorneys’ 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 paragraph 8 and any amount awarded pursuant

to paragraph 9, petitioner, in his individual capacity and on behalf of his 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-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 Tdap vaccination

administered on April 22, 2016, as alleged by petitioner in a petition for vaccine compensation

filed on or about May 31, 2017, in the United States Court of Federal Claims as petition No. 17-

717V.




                                                  3
        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.

        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 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 Tdap vaccine caused petitioner’s alleged SIRVA,

any other injury, or his current disabilities.

        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:



   J1-Ja~/
  DENNIS SMALLEY


  ATTORNEY OF RECORD FOR


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I ~ -(;,.,..
    SEPH   A. VUCKOVICH, ESQ.
  Maglio Christopher & Toale, PA                 Deputy Director
  1015 151h Street, NW                           Torts Branch
  Suite 1125                                     Civil Division
  Washington, DC 20005                           U.S. Department of Justice
  Tel: (888) 952-5242                            P.O. Box 146
                                                 Benjamin Franklin Station
                                                 Washington, DC 20044-0146


   AUTHORIZED REPRESENTATIVE OF                  ATTORNEY OF RECORD FOR
   THE SECRETARY OF HEALIB AND
   HUMAN SERVICES:
                                                 (_~ 6 ~
                                                   ~      p ~ 1-l..___ ~>
  TAMARA OVERBY                                  CLA.116IA~          GI
  Acting Director, Division of Injury            Senior Trial Attorney
  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 08N146B           Washington, DC 20044-0146
  Rockville, MD 20857                            Tel: (202) 616-4138



  Dated:    ~,t"f. {2.-0

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