         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-1442V
                                      Filed: April 22, 2019
                                         UNPUBLISHED


    BITA FOTUHI,

                        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.


Paul D. Bekman, Bekman, Marder & Adkins, LLC, Baltimore, MD, for petitioner.
Lara Ann Englund, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On October 5, 2017, 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 the influenza (“flu”) vaccine she received on
October 8, 2014, caused her to develop a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) in her left shoulder. Petition at 1; Stipulation, filed April 18,
2019, at ¶¶ 2-4. Petitioner further alleges that she experienced residual effects of this
injury for more than six months. Petition at 3; Stipulation at ¶ 4. “Respondent denies
that the flu vaccine is the cause of petitioner's alleged SIRVA or any other injury or her
current condition.” Stipulation at ¶ 6.



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 Because this unpublished decision contains a reasoned explanation for the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).
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).
        Nevertheless, on April 18, 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 $131,962.33 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 STATES COURT OF FEDERAL CLAIMS
                           OFFICE OF SPECIAL MASTERS

BITA FOTUHI,                                          )
                                                      )
                        Petitioner,                   )
                                                      )
        V.                                            ) No. 17-1442V
                                                      ) Chief Special Master Nora Beth Dorsey
SECRETARY OF                                          )
HEALTH AND HUMAN SERVICES,                            )
                                                      )
                        Respondent.                   )


                                             STIPULATION

        The parties hereby stipulate to the following matters:

        I. Petitioner Bita Fotuhi ("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. § I00.3 (a).

       2. Petitioner received a flu vaccine on or about October 8, 2014.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that the flu vaccine caused her to develop a Shoulder Injury Related

to Vaccine Administration ("SIRVA") in her left shoulder and that she experienced 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 as a resu lt of her condition.

       6. Respondent denies that the flu vaccine is the cause of petitioner's alleged SIRVA or

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$131,962.33 in the form of a check payable to petitioner. Th is amount
        represents compensation for all damages that would be available under 42 U.S.C.
        § 300aa-l 5(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-2 l (a)( I), and an application, the parties will subm it to further proceedings before

the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this

petition.

        10. Petitioner and her 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- I5(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.

        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.




                                                     2
        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-l S(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 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-l Oet 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 October 8, 20 I 4, as

alleged by petitioner in a petition for vaccine compensation filed on or about October 5, 2017, in

the United States Court of Federal Claims as petition No. 17-1442Y.

        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 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.



                                                  3
            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 to do any act or thing other than is herein expressly stated

    and clearly agreed to. The patties 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 furth er, 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 th is agreement.

           17. This Stipu lation 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 SIR YA

or any other injury or her current condition.

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

heirs, executors, adm inistrators, successors, and/or assigns.

                                        END OF STIPU LATION
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                                                    4
 Respectfully submitted,

 PETfTIONER:



 nr1·A FOTUJ II

ATTORNEY OF RECORD FOR                  /\UT! IOR.11/.ED REPRFSENTATIVE
PETITIONER:                             OF fl IE Ar l"OR\:E\' GENERAL:

~~7 ) ~                                                    [l_ _
PAUL D. f3EKMAN                          'A 'II/\RlNE E. REEVES
BEK:vl/\N , M/\IWF.R   & /\OKINS, LLC   Deputy Director
130 West Pratt Streel                   rorls Branch
Suit~ 450                               Civi l Division
Baltimor<.:, Maryland 21201             U. S. Department of Justice
(4 I 0) ') :\9-6633                     P.O. Box 146
                                        Benjamin Frnnklin Station
                                        Washington, DC 20044-0146


AUTHORIZED REPRESENl Arrvr.             ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEAl rH             RESPONDENT:
/\ND J ll lMAN SERVICES:



 uJ~d :s$~U(.,cf~
Ni\R/~ YAN NAIR, M.D.
                                         ~ -ci.A ~ C
                                        I /\l~A A. EN(iLUND      '-"
Director, Division of                   Trial /\Horney
Injury Compensation Programs            Tort<; Branch
l lcalthcare Systems I3urcau            Civil Division
U.S. Department ol'Tlcalth              lJ.S. Department  or   Justice
a11cl Human Services                    P .O. Box 146
5600 Fishers Lane                       1.knjarnin Frank l in Station
Parklawn Building, Mail Slop 08Nl46B    Washington, DC 20044-0J.16
Rock ville, MD 20857                    (202) 307-3013


Dated:   __          /1'5
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