         In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-943V
                                         UNPUBLISHED


    BARBARA J. BROWN,                                         Chief Special Master Corcoran

                         Petitioner,                          Filed: November 25, 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)


Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.

Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION ON JOINT STIPULATION1

        On June 29, 2018, Barbara J. Brown 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
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
September 30, 2017. Petition at 1; Stipulation, filed November 22, 2019, at ¶¶ 2, 4.
Petitioner further alleges that the vaccine was administered within the United States,
that 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 injury. Petition at 1, 5; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner
sustained a SIRVA Table injury following the flu vaccine administered on or about
September 30, 2017; denies that the vaccine caused petitioner’s alleged left shoulder


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  Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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.
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).
injuries or any other injury; and denies that petitioner’s current condition is a sequelae of
a vaccine-related injury.” Stipulation at ¶ 6.

        Nevertheless, on November 22, 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 $65,000.00 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

                                               )
BARBARA J. BROWN.                              )
                                               )
               Petitioner,                     )
                                               )      No. 18-943V (ECF)
V.                                             )      Chief Special Master Corcoran
                                               )
SECRETARY OF HEALTH AND                        )
HUMAN SERVICES,                                )
                                               )
               Respondent.                     )


                                            STIPULATION

       The parties hereby stipulate to the following matters:

        1. Barbara J. Brown, petitioner, tiled 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 a flu vaccination on or about September 30,2017.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that the flu vaccine caused her to develop a left-sided Shoulder

Injury Related to Vaccine Administration (''SIRVA") within the time period set forth in the

Table. Petitione£ further alleges that she experienced the residual effects of this injury for more

than six. months.

       S. Petitioner represents that there-ho,; hnn no -prior aw:m! or e~ttlement of a civil 2ction

for damages as a result of her condition.
        6. Respondent denies that petitioner sustained a SJRVA Table injury following the flu

vaccine administered on or about September 30, 2017; denies that the vaccine caused petitioner's

alleged left shoulder injuries or any other injury; and denies that petitioner's 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-2l(a)(l), the Secretary of Health and Human Services will issue

the foJlowing vaccine compensation payment:

        A lump sum of $65,000.00 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-l5(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-2 I (aXl ), and an application, the parties will submit to further proceedings before

the special mast.er to award reasonable attorneys• fees and costs incurred in proceeding upon this

petition.

        I 0. 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

under42 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.



                                                  2
        l l. Payment made pursuant to paragraph 8 of this Stipulation, and any amount awarded

pursuant to paragraph 9 of this Stipulation, will be made in accordance with 42 U.S.C. § 300aa-

lS(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-l5(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa-1 S(g) and (h).

        13. In return for the payments 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, ex.penses 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 vaccination administered on or

about September 30. 2017, as alleged by petitioner in a petition for vaccine compensation filed

on or about June 29, 2018, in the United States Court of Federal Claims as petition No. l 8-943V.

       14. lfpetitioner 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 cooformity witll 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 Jiability and

damages claimed wider the National Childhood Vaccine lnjury Act of 1986, 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 StipuJation

may reflect a compromise of the parties' respective positions as to liabiJity and/or amount of

damages, and further, that a change in tbe 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 thal the flu vaccine caused petitioner's alleged left-

sided SIRVA, any other injury, or her current condition.

        l S. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

heirs, executors, administrators. successors, and/or assigns.

                                     END OF STIPULATION

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Respectfully submitted,

PETITIONER:




ATIORNEY OF RECORD FOR                      AUTHORIZED REPRESENTATIVE
PETITIONER: .,,,---?                        OFT E ATTORNEY GENERAL:

                                                                         1/-------
                                                       NEE. REEVES
Z0 f Sayad,                                 Deputy Director
75 South Broadway, Fourth Floor             Torts Branch
White Plains, NY 1060 l                     Civil Division
Tel: (914) 729-1110                         U.S. Department of Justice
                                            P.O. Box 146
                                            Benjamin Franklin Station
                                            Washington, DC 20044-0146


AUTHORIZED REPRESENTATIVE                   ATTORNEY OF RECORD FOR
OFTHESECRETARYOFHEALTH                      RESPONDENT:
AND HUMAN SERVICF.8:



TAMARA OVERBY
Acting Director, Division oflnjury          Trial Attorney
Compensation Programs                       Torts Branch
Healthcare Systems Bureau                   Civil Division
U.S. Department of Health                   U.S. Department of Justice
and Human Services                          P.O. Box 146
5600 Fishers Lane                           Benjamin Franklin Station
Parklawn Building, Mail Stop 08N 1468       Washington, DC 20044-0146
Rockville, MD 20857                         Tel: (202) 616-4118



Dated: U:,/a._~/. JiOI 5


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