     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 19-101V
                                         UNPUBLISHED


    BRIAN VAN VICKLE,                                         Chief Special Master Corcoran

                         Petitioner,                          Filed: May 6, 2020
    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)


Bruce William Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for
petitioner.

Lara Ann Englund, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION ON JOINT STIPULATION1

       On January 18, 2019, Brian Van Vickle 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 an influenza (“flu”) vaccine administered on
October 17, 2016. Petition at 1; Stipulation, filed May 5, 2020, at ¶¶ 1-2, 4. Petitioner
further alleges that the vaccine was administered in the United States; that he suffered
the residual effects of his 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, 6; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner
sustained a SIRVA Table injury; denies that the vaccine caused petitioner’s alleged


1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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

       Nevertheless, on May 5, 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 $43,720.00 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.

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

BRIAN VAN VICKLE,                                    )
                                                     )
                      Petitioner,                    )
                                                     )
       V.                                            ) No. 19-101 V
                                                     ) Chief Special Master Brian Corcoran
SECRETARY OF                                         )
HEALTH AND HUMAN SERVICES,                           )
                                                     )
                      Respondent.                    )


                                         STIPULATION

       The parties hereby stipulate to the following matters:

       l. Petitioner Brian Van Vick.le ("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 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 vaccine on or about October 17, 2016.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that he sustained a shoulder injury related to vaccine administration

("SIRVA") within the time period set forth in the Table. He further alleges 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 acti.on

for damages as a result of bis condition.
       6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the

vaccine caused petitioner's alleged shoulder injwy, 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 ofjudgment 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 ofHealth and Hwnan Services will issue

the following vaccine compensation payment:

        A lump sum of $43,720.00, 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-2I(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.

        10. 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-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.




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        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 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-l 5(g) and (h).

        l3. In return for the payments described in paragraphs 8 and 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 aU

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 October 17,

2016, as alleged by petitioner in a petition for vaccine compensation filed on or about January

 18. 2019. in the United States Court of Federal Claims as petition No. 19-lOIV.

         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 conformity with the terms

of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity 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 wider 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 W1derstand 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 natw-e 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 shoulder

injucy or any other injury or his current condition.

        18. 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:




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



 .Lw~
BRUCE W. SLANE
THE LAW OFFICE OF BRUCE W. SLANE, P.C.
188 East Post Road, Suite 205
                                             e::ffiVE~c___
                                             Deputy Director
                                             Torts Branch
White Plains, NY 10601                       Civil Division
(914) 269-2010                               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                   RESPONDENT:
AND HUMAN SERVICES:
                                             ~A~~
                                              ~ ~ "LL---~. . .
TAMARA OVERBY                                LARA A. ENGLUND
Acting Director, Division of                 Senior Trial Attorney
Injury 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 08N146B        Washingto~ DC 20044-0146
 Rockville, MD 20857                         (202) 307-3013


 Dated:   S   ]'5/7-0
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