        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-0573V
                                    Filed: December 9, 2016
                                         UNPUBLISHED

****************************
PAULA YOST,                              *
                                         *
                     Petitioner,         *     Joint Stipulation on Damages;
v.                                       *     Influenza (“Flu”) Vaccine; Shoulder
                                         *     Injury Related to Vaccine Administration
SECRETARY OF HEALTH                      *     (“SIRVA”); Special Processing Unit
AND HUMAN SERVICES,                      *     (“SPU”)
                                         *
                     Respondent.         *
                                         *
****************************
Danielle Anne Strait, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On May 12, 2016, Paula Yost (“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 she suffered a shoulder injury related
to vaccine administration (“SIRVA”) as a result of receiving an influenza (“flu”) vaccine
to her left shoulder on October 25, 2014. Petition at 1; Stipulation, filed December 8,
2016, at ¶ 2, 4. Petitioner further alleges that she experienced the symptoms of this
injury for more than six months. Petition at 1; Stipulation at ¶ 4. “Respondent denies
that the vaccine either caused or significantly aggravated petitioner’s alleged injury or
any other injury, and denies that petitioner’s current disabilities are the result of a
vaccine-related injury.” Stipulation at ¶ 6.

       Nevertheless, on December 8, 2016, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. The

1
  Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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.
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).
undersigned finds the stipulation reasonable and adopts it as the decision of the Court
in awarding damages, on the terms set forth therein.

        The parties stipulate that petitioner shall receive the following compensation:

        A lump sum of $170,000.00, 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 42 U.S.C. § 300aa-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 STATES CO URT OF FEDERAL CLAIMS
                           OFFICE OF SPECIAL MASTERS

                                                 )
PAULA YOST,                                      )
                                                 )
                     Petitioner,                 )      No. 16-573V      ECF
                                                 )
                v.                               )      Chief Special Master Dorsey
                                                 )
SECRETA RY OF HEALT H                            )
AN D HUMAN SERVICES.                             )
                                                 )
                  Respondent.                    )
~~~~~~~~~~~~~~~                                  )
                                           STIPULATION

        The parties hereby stipulate to the fo llowing matters:

        1.   Petitioner, Paula Yost, filed a petition fo r vacc ine compensation under the National

Vaccine Inj ury Compensation Program, 42 U.S.C. §§ 300aa-1 0 to 34 (the " Vaccine Program").

T he petition seeks compensation for inj uries allegedly related to petitioner's receipt of the

influenza vaccine ("vaccine"), which is contained in the Vaccine Injury Ta ble (the "T able" ). 42

C.F.R. § 100.3(a).

       2.    On October 25. 20 14. petitioner received the vaccine.

       3.    The vaccine was administered within the United States.

       4.    Petitioner alleges that, as a result of receiving the vaccine, she suffered from a left

shoulder injury related to vaccine administration (" SIRVA"). and that she experienced symptoms

of this injury 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 her alleged injury.
        6.    Respondent denies that the vaccine either caused or sig nifica ntly aggravated

petitioner's alleged injury or any other injury. and denies that petitioner's current disabilities a re

the result of a vaccine-related injury.

        7.    Maintaining their above-stated positions, the parties neverthe less now agree that the

issues between them shall be settled and that a decision should be e ntered 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, a nd after petitioner has filed an e lection to receive

compensation pursuant to 42 U.S.C. § 300aa-2 l (a)( I), the Secretary o f Health and Human

Serv ices w ill issue the following vaccine compensation payment:

                  A lwnp sum of $ 170,000 .00, in the form of a check, payable to petitione r.

This a mount re presents compensation for all damages tha t would be availab le unde r 42 U.S.C.

§ 300aa-l 5(a).

        9.    As soon as practica ble after the entry of judgment on e ntitlement in this case, and

after petitioner has filed both a prope r and timely e lection to receive compensation pursuant to

42 U .S.C. Section 300aa-2 l (a)( I), and an application. the parties w ill s ubmit to further

proceedings before the special master to award reasonable a ttorneys· fees a nd costs incurred in

proceeding upon this petition.

        l0.    Petitioner and her attorney represent tha t compensation to be provided pursua nt to

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

under 4 2 U.S .C. § 300aa-1 5(g), to the extent that payment has been made or can reasona bl y be

expected to be made under an y State compensation programs, ins urance policies, Federal or

State health benefits programs (other than Title X IX of the Social Security Act (42 U.S.C.

                                                    2
§ 1396 et seq.)), or by entities that provide health services on a pre-paid bas is.

        11.   Payment made pursuant to paragraph 8 of thi s Stipulation. and any an1ounts

awarded pursuant to paragraph 9 of this Stipulation, will be made in accordance with 42 U.S.C.

§ 300aa-l 5(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, the money provided pursuant to thi s Stipulation will be

used solely for the benefit of petitioner, as contemplated by a strict construction of 42 U.S.C.

§ 300aa-1 5(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa-1 5(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 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

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

alleged to have resulted from, the vaccine administered on October 25, 2014, as alleged by

petitioner in a petition for vaccine compensation fil ed on or about May 12, 20 16, in the United

States Court of Federal Claims as petition No. 16-573V .

        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 fail s to issue a decision in complete conformity with the terms

                                                   3
of this Stipulatio n or if the Court o f Federa l C laims fai ls to e nter j udgment in conformi ty with a

decision that is in complete conformi ty with the terms of this Stipulation. then the parti es·

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

        16.   This Stipulation expresses a fu ll and complete negotiated settleme nt of liability a nd

damages claimed under the National Childhood Vacc ine Inj ury 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 payme nt or to do any act o r thing other than is he rein expressly stated

and clearly agreed to.    The parties further agree and understand that the award descri bed in this

stipulation may refl ect a compromise of the parties· respective pos itions as to liability and/or

amount of damages, and further, that a cha nge in the nature of the injury o r condition or in the

items o f compensation sought, is not grounds to modify or revise this agreeme nt.

        17. This Stipula tion shall not be construed as an admission by the United Sta tes or the

Secretary o f Health and Human Services that the vaccine received by petitioner either caused or

significantly aggravated petitioner's alleged injury or any other injury.

        18 . All rights and obligations of petitioner hereunder shall apply equa lly to petitioner·s

heirs, executors, administrators. successo rs. and/or assigns.

                                       END OF STIPULATION




                                                     4
Respectfully submitted,

PETITIONER:




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

                                                                   [_L__
                                                  T ARTNE E. REEVES
Maglio Christopher & Toale, PA                 Acting Deputy Di rector
1775 Pennsylvania Ave NW, Suite 225            Totts Branch
Washington, DC 20006                           Civil Division
(888) 9525242                                  U.S. Department of Justice
                                               P.O. Box 146
                                               Benj amin Frankl in Station
                                               Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE                      ATTORNEY OF RECORD FOR
OF THE SECRETA Y F HEALTH                      RESPONDENT:
ANDHU          C S:


                         ~
                                  ~
                                  (4'1'-
                                               DARRYLR. WISHARD
Director, Division oflnjury                    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 08Nl 46B          Washington, DC 20044-0 146
Rockvi lle, MD 20857                           Tel: (202) 616-4357



Dated: _   /_Z ..____
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