         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-485V
                                    Filed: January 11, 2018
                                        UNPUBLISHED


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

                       Respondent.


John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

       On April 6, 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered on
October 5, 2015. Petition at 1; Stipulation, filed January 11, 2018, at ¶¶ 1-4. Petitioner
further alleges that the vaccine was administered within the United States, that she
suffered the residual effects of this injury for more than six months, and that there has
been no prior award or settlement of a civil action for damages on her behalf as a result
of her alleged vaccine injury. Petition at 15; Stipulation at ¶¶ 3-5. “Respondent denies
that the flu vaccination caused petitioner’s alleged SIRVA or any other injury or her
current condition.” Stipulation at ¶ 6.



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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
        Nevertheless, on January 11, 2018, 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 $135,000.00 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.

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                IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                          OFFICE OF SPECIAL MASTERS

                                               )
BROOKE LEE GUELKER,                            )
                                               )
         Petitioner,                           )       No. l 7-485V     ECF
                                               )
                v.                             )       Chief Special Master Dorse y
                                               )
SECRETARY OF HEALTH                            )
AND HUMAN SER VICES.                           )
                                               )
        Respondent.                            )
---~~--------- )
                                          STIPULATION

        T he parties hereby stipulate to the fo llowing matters:

        I. Brooke Lee Guelker ("petitioner") fi led a petition for vaccine compensation under the

Nationa l Vaccine Injury Compensation Program, 42 U.S.C. § 300aa- I 0 to 34 (the "Vaccine

Program"). The petition seeks compensation for injuries allegedly related to petiti oner's receipt

of the influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the

"Table"), 42 C.F. R. § I 00.3(a).

        2. Petitioner received her flu vaccine on October 5, 2015.

        3. The vaccine was administered within the United States.

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

("SIRVA") as the result of her flu vacc ination and that she 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 her behalf as a result of her a lleged vaccine injury.
        6. Respondent denies that the flu vaccination caused 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-2 l (a)( I), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

        A lump sum of $135,000.00 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).

        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)(!), and an application, the parties will submit to further proceedings before

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

petition.

        I 0. Petitioner and her attorney represent that the y 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-l 5(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.




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        11 . Payments 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-1 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 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-l 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-I 5(g) and (h).

        13. ln 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 ha ve been brought, could have been brought, or cou ld be timely

brought in the Court of Federal Claims, under the Nationa l Vaccine Inj ury Compensation

Program, 42 U.S.C. § 300aa-I 0 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 , her flu vaccinati on administered on October 5, 20 15, as

alleged by petitioner in a petition for vaccine compensation filed on or about April 6, 2017, in

the United States Court of Federal Claims as petition No. I 7-485V.

        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

of this Stipulation or ifthe Court of Federa l Claims fail s to enter judgment in conformity with a



                                                     3
decision that is in complete conformity with the terms of this Stipulation, then the parties'

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

        16. This Stipulation expresses a full and complete negotiated sett lement 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 clearl y agreed to. The parties further agree and understand that the award described in this

Stipulation may reflect a compromise of the parties' respective pos itions 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 compensat ion 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 her current condition.

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

hei rs, executors, administrators, successors, and/or assigns.

                                     END OF STIPULATION

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Respectfully submitted,

PETITIONER:
  0Mllk(J     ~IJtlkU)
BROOKE LEE OUELKER



ATTORNEY OF RECORD FOR                         AUTHORIZED REPRESENTATIVE



                                               5.~
PETITIONER:



                                                       RINE E. REEVES
                                               Deputy Director
                                               Torts Branch
                                               Civil Division
                                               U.S. Department of Justice
                                               P.O. Box 146
                                               Benjamin Franklin Station
                                               Washington, DC 20044-0146

                                               ATTORNEY OF RECORD FOR
                                               RESPONDENT:




               AIR, M.D.
                                          ~    DARRYL R. WISHARD
Director, Division of Injury                   Senior Trial Attorney
Compensation Programs                          Torts Branch
Healthcare Systems Bureau                      Civil Division
Health Resources and Services Administration   U.S. Department of Justice
U.S. Department of Health 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) 616-4138




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