     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-1120V
                                         UNPUBLISHED


    HEATHER HARVARD,                                          Chief Special Master Corcoran

                         Petitioner,                          Filed: April 21, 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)


Jeffrey Gordon, Maney & Gordon, P.A., Tampa, FL, for petitioner.

Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION ON JOINT STIPULATION 1

        On July 31, 2018, Heather Harvard 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 Related to
Vaccine Administration (SIRVA) after receiving an influenza (“flu”) vaccine on August
10, 2015. Petition at 1; Stipulation, filed April 21, 2020, at ¶¶ 1-2. Petitioner further
alleges she sustained the first symptom or manifestation of onset of a left SIRVA within
the Table time period; experienced the residual effects of this injury for more than six
months; she had no recent history of pain, inflammation, or dysfunction of her left
shoulder prior to her vaccination. Petition at 1; Stipulation at ¶¶ 4. In the Stipulation,
Respondent states that “[t]here is not a preponderance of evidence demonstrating that
petitioner’s SIRVA is due to a factor unrelated to her immunization” and “[a]ccordingly,
petitioner is entitled to compensation for her SIRVA under the terms of the Act.”

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  Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
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).
Stipulation at ¶ 5, 7. However, Respondent “denies that the flu vaccine caused any
other injury, including Complex Regional Pain Syndrome.” Stipulation at ¶ 7.

       On April 21, 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 $109,582.59 in the form of a check payable to Petitioner,
        consisting of $105,000.00 for past and future pain and suffering and $4,586.59
        for unreimbursed expenses. Stipulation at ¶ 9. 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

                                                )
HEATHER HARVARD,                                )
                                                )
                      Petitioner,               )      No. 18-1120V        ECF
                                                )
                 V.                             )      Chief Special Master Corcoran
                                                )
SECRETARY OF HEAL1H                             )
AND HUMAN SERVICES,                             )
                                                )
____________      Respondent.                   )
                                                )


                                           STIPULATION
        The parties hereby stipulate to the following matters:

          1. Petitioner, Heather Harvard, 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 is contained in the Vaccine Injury Table (the "Table"), 42

C.F.R § I00.3(a).

       2. On August 10, 2015, petitioner received the flu vaccine in the left arm.

       3. The vaccine was administered within the United States.

       4.      Petitioner sustained the first symptom or manifestation of onset of a left shoulder

injury related to vaccine administration (''SIRVA"), within the Table time period, following

receipt of the flu vaccine, and experienced the residual effects of this injury for more than six

months.

       S. There is not a preponderance of evidence demonstrating that petitioner's SIRVA is
  due to a factor unrelated to her immuniz.ation.

         6.     Petitioner represents that there has been no prior award or settlement of a civil

 action for damages as a result of her alleged injuries.

         7.    Accordingly, petitioner is entitled to compensation for her SIRVA under the terms

 of the Act Respondent denies that the flu vaccine caused any other injury, including Complex

 Regional Pain Syndrome ("CRPS").

         8.    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 9 of this Stipulation.

        9.    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-2l(a)(I), the Secretary of Health and Human

Services will issue the following vaccine compensation payment:

                A lump sum of $109,582.59 (consisting of $105,000.00 for past and future pain
                and suffering; and, $4,586.59 for unreimbursed expenses), 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-l 5(a).

        l 0. As soon as practicable after the entry ofjudgment 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. Section 300aa-2l(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.


                                                    2
        11. Petitioner and her 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

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.

        12. Payment made pursuant to paragraph 9 of this Stipulation, and any amounts

awarded pursuant to paragraph 10 of this Stipulation, will be made in accordance with 42 U.S.C.

§ 300aa-1 S(i), subject to the av~ilability of sufficient statutory funds.

        13. 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- l 5(a) and (d), and subject to the conditions of 42 U.S.C.

§§ 300aa-15(g) and (h).

        14. In return for the payments described in paragraphs 9 and I 0, 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, 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


                                                   3
unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or

alleged to have resulted from, the vaccine administered on August 1S, 2015, as alleged by

petitioner in a petition for vaccine compensation filed on or about July 31, 2018, in the United

States Court of Federal Claims as petition No. 18-1120V.

        15. 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.

        16. If the special master fails to issue a decision in complete confonnity with the terms

of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity with a

decision !flat is in complete confonnity with the terms of this Stipulation, !hen the parties'

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

        17. 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 10 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 e,cpressly 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

        18. This Stipulation shall not be construed as an admission by the United States or the

Secretary of Health and Human Services that the vaccine either caused or significantly

aggravated petitioner's alleged injury or any other injury; however, petitioner has satisfied the

Table criteria to establish entitlement to compensation for her sm.vA.


                                                  4
        19. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

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

                                    END OF STIPULATION




                                               5
Respectfully submitted,

PETmONER:



~QL~~\;!AA~
    TIIER HARVARD

A'ITORNEYOFRECORDFOR                       AUfBORlZED REPRESENTATIVE
PETMONER:                                  OF THE A'ITORNEY GENERAL:


                                           ~                   VESLL_ _
- ~
Maney & Gordon, P.A.                       Deputy Director
101 E. Kennedy Blvd., Suite 1700           Torts Branch
Tampa, FL 33602                            Civil Division
Tel: (813) 221-1366                        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 SERVICES:



 wtud s~~J',t,
TAMARA OVERBY
                                           °f;1f~ ~
                                           DARRYLR WISHARD
Acting Director, Division of Injury        Senior 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 08N146B       Washington, DC 20044-0146
Rockville, MD 20857                        Tel: (202) 616-4357


Dated:   l.f/u I w
          I     I

                                       6
