     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-1205V
                                         UNPUBLISHED


    PALESTINE MCGOWEN,                                        Chief Special Master Corcoran

                         Petitioner,                          Filed: January 16, 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)


Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.

Jeffrey T. Sprague, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION ON JOINT STIPULATION 1

        On August 14, 2018, Palestine McGowen 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 her October 18, 2016 influneza (“flu”)
vaccination. Stipulation, filed January 15, 2020, at ¶¶ 2,4; see also Petition at 1-3.
Petitioner further alleges that the vaccine was administered within the United States,
that she suffered 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 on her behalf as a result of
her injury. Stipulation at ¶¶ 3-5; Petition at ¶2, 12-14. “Respondent denies that
petitioner sustained a SIRVA Table injury and denies that petitioner’s alleged SIRVA
and its residual effects were caused-in-fact by her flu vaccine. Respondent further


1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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.
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).
denies that the flu vaccine caused petitioner another injury or her current condition.
Stipulation at ¶ 6.

       Nevertheless, on January 15, 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 $30,820.82 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), to include $30,000.00 for pain
        and suffering and $820.82 for out-of-pocket medical expenses. 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

                                               )
PALESTINE MCGOWEN,                             )
                                               )
                     Petitioner,               )       No. I 8-1205V        ECF
                                               )
                v.                             )       Chief Special Master Corcoran
                                               )
SECRETARY OF HEALTH                            )
AND HUMAN SERVICES,                            )
                                               )
                  Respondent.                  )
---------------)

                                          STIPULATION

        The parties hereby stipulate to the following matters:

        1.   Petitioner, Palestine McGowen, 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. § 100.3(a).

        2.   On October 18, 2016 petitioner received a flu vaccine in the right arm.

        3.   The vaccine was administered within the United States.

       4.    Petitioner alleges that she suffered a shoulder injury related to vaccine administration

("SIRVA"), and that she experienced symptoms of the injury for more than six months.

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

for damages as a result of her alleged injuries.

       6.    Respondent denies that petitioner sustained a SIRVA Table injury and denies that
 petitioner's alleged SIRVA and its residual effects were caused-in-fact by her flu vaccine.

 Respondent further denies that the flu vaccine caused petitioner any other injury or her current

condition.

        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-21(a)(l), the Secretary of Health and Human

Services will issue the following vaccine compensation payment:

                  A lump sum of $30,820.82, 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), to include $30,000.00 for pain and suffering and $820.82
                  for out-of-pocket medical expenses.

        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. Section 300aa-21(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.

        l 0.    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.

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

        11.   Payment made pursuant to paragraph 8 of this Stipulation, and any amounts

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, 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-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 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 18, 2016 as alleged by

petitioner in a petition for vaccine compensation filed on or about August 14, 2018, in the United

States Court of Federal Claims as petition No. 18- l 205V.

       14.    If petitioner should die prior to entry of judgment, this agreement shall be voidable


                                                   3
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 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 a'.1d 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 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

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 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 equally to petitioner's

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

                                    END OF STIPULATION




                                                 4
  Respectfully submitted,

  PETITIONER:



_pGLOu;))v;
  PALESTINE MCGOWEN

  ATTORNEY OF RECORD FOR                     AUTHORIZED REPRESENTATIVE
  PETIT ONER:                                OF THE ATTORNEY GENERAL:



                                             C~                EV~S ~     --
    uller Brazil, LLP                        Deputy Director
  715 Twining Road, Suite 208                Torts Branch
  Dresher, PA 19025                          Civil Division
  Tel: (215)-855-1655                        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 S~RVICES:



  TAMARA OVERBY
  Acting Director, Division of Injury          1al Attorn,ey
  Compensation Programs                       orts 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 08Nl46B       Washington, DC 20044-0146
  Rockville, MD 20857                        Tel: (202) 616-4179


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