         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 18-0407V
                                      Filed: July 12, 2019
                                        UNPUBLISHED


    SEAN KAPLAN,

                        Petitioner,
    v.                                                       Special Processing Unit (SPU); Joint
                                                             Stipulation on Damages; Influenza
    SECRETARY OF HEALTH AND                                  (Flu) Vaccine; Shoulder Injury
    HUMAN SERVICES,                                          Related to Vaccine Administration
                                                             (SIRVA)
                       Respondent.


Edward M. Kraus, Law Offices of Chicago Kent, Chicago, IL, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
       respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On March 19, 2018, petitioner 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 the Vaccine Table Injury, known as
shoulder injury related to vaccine administration (“SIRVA”) after receiving the influenza
vaccination on October 19, 2016. Petition at 1, ¶ 3; Stipulation, filed July 11, 2019, at
¶¶ 1-2, 4. Petitioner further alleges that he received the vaccination in the United
States, that he suffered and continues to suffer the residual effects of his injury for more
than six-month, and that neither he nor any other party has received compensation or
has filed a civil action for his injury, alleged as vaccine caused. Petition at ¶¶ 3, 18-19;
Stipulation at ¶¶ 3-5. “Respondent denies that petitioner suffered the onset of his

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
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).
alleged SIRVA within the Table timeframe; denies that the flu vaccine caused
petitioner’s alleged SIRVA or any other injury and further denies that his current
disabilities are a sequela of a vaccine-related injury.” Stipulation at ¶ 6.

        Nevertheless, on July 11, 2019, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. The undersigned
finds the stipulation reasonable and adopts it as the decision of the Court in awarding
damages, on the terms set forth therein.

     Pursuant to the terms stated in the attached Stipulation, the undersigned
awards the following compensation:

        A lump sum of $64,000.00 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.

       The undersigned approves 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/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          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 ST ATES COURT OF FEDERAL CLAIMS
                          OFFICE OF SPECIAL MASTERS


SEAN KAPLAN,

                Petitioner,                               No. 18-407V
                                                          Chief Special Master Dorsey
 V.                                                       ECF

 SECRETARY OF HEALTH AND
 HUMAN SERVICES,

                Respondent.


                                          STIPULATION

       The parties hereby stipulate to the following matters:

        I. Petitioner, Sean Kaplan, 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 19, 2016.

       3. The vaccine was administered within the United States.

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

("SIRVA") as a consequence of the flu immunization he received on or about October 19, 2016,

and further alleges that he suffered 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 on his behalf as a result of his condition.




                                            Page 1 of 5
        6. Respondent denies that petitioner suffered the onset of his alleged SIRVA within the

Table timeframe; denies that the flu vaccine caused petitioner's alleged SIRVA or any other injury

and further denies that his current disabilities are a sequela 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

following vaccine compensation payment:

               A lump sum of $64,000.00, in the form of a check payable to petitioner,
               representing 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 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 prepaid basis.




                                             Page 2 of 5
        11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts 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.

        12. The parties and their attorneys further agree and stipulate that, except for any award

for attorney's fees and litigation costs, 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 payments described in paragraphs 8 and 9, petitioner, in his individual

capacity, and on behalf of his heirs, executors, administrators, successors, and 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 United

States 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 October 19, 2016, as

alleged by petitioner in a petition for vaccine compensation filed on or about March 19, 2018 in

the United States Court of Federal Claims as petition No. 18-407V.

        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 United States Court of Federal Claims fails to enter judgment in



                                              Page 3 of 5
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 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 or any of 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




                                             Page 4 of 5
Respectfully submitted,


PETITIONER:



SEAN KAPLAN


ATTORNEY OF RECORD FOR

p~

EDWARD KRAUS                                                    TEE. REEVES
Law Offices
Chicago-Kent College of Law
565 West Adams Street, Suite 600                    Civil Division
Chicago, IL 60661                                   U. S. Department of Justice
(312) 906-5072                                      P. 0. Box 146
                                                    Benjamin Franklin Station
                                                    Washington, D.C. 20044-0146



AUTHORIZED REPRESENTATIVE OF                        ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH AND                         RESPONDENT:
HUMAN SERVICES:



TAMARA OVERBY
Acting Director, Division of                        Trial Attorney
Injury Compensation Programs (DICP)                 Torts Branch, Civil Division
Healthcare Systems Bureau                           U.S. Department of Justice
U.S. Department of Health                           P.O. Box 146
and Human Services                                  Benjamin Franklin Station
5600 Fishers Lane                                   Washington, D.C. 20044-0146
Parklawn Building, Stop-08N146B                     Tel: (202) 305-0660
Rockville, MD 20857




Dated:            I/_,__/1'----
         _1'__,__/-+I


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