         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-1593V
                                   Filed: September 20, 2019
                                         UNPUBLISHED


    MARY GULER,

                        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.


Diana Lynn Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION 1

Dorsey, Chief Special Master:

         On October 24, 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
August 25, 2016. Petition at 1; Stipulation, filed September 19, 2019, at ¶¶ 1, 2.
Petitioner further alleges that the flu vaccine was administered within the United States,
that she experienced the residual effects of this condition for more than six months, and
that there has been no prior award or settlement of a civil action for damages as a result
of [t]his condition. Petition at 3; Stipulation at ¶¶ 3-5. “Respondent denies that
petitioner sustained a SIRVA Table Injury and denies that the flu immunization is the


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).
cause of petitioner’s alleged shoulder injury, or any other injury or condition.” Stipulation
at ¶ 6.

       Nevertheless, on September 19, 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 $98,000.00 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.

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


MARY GULER,

                      Petitioner,

v.                                                    No. 17-1593V
                                                      Chief Special Master Nora Beth Dorsey
SECRETARY OF HEALTH AND                               ECF
HUMAN SERVICES,

                      Respondent.




                                         STIPULATION

       The parties hereby stipulate to the following matters:

       1. 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.

§ 100.3(a).

       2. Petitioner received the flu vaccination on or about August 25, 2016.

       3. The vaccine was ~dministered within the United States.

       4. Petitioner alleges that the flu vaccine caused her to develop a shoulder injury and that

she experienced the residual effects of this condition 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 his condition.




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        6. Respondent denies that petitioner sustained a SIRVA Table injury and denies that the

flu immunization is the cause of petitioner's alleged shoulder injury. or any other injury or

condition.

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

issues between them shall be settled and t~at 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 $98,000.00 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-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 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-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 pre-paid basis.




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        11. Payment made pursuant to paragraph 8 of this Stipulation, and any amount 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, 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-15(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa-l 5(g) and (h).

        13. In return for the payment described in paragraph 8, and any amount awarded

pursuant to paragraph 9, petitioner, in her individual capacity, and on behalf of her heirs,

executors, administrators, successors and/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 vaccine administered on or about August 25, 2016, as alleged by petitioner in a

petition for vaccine compensation filed on or about October 24, 2017, in the United States Court

of Federal Claims as petition No. l 7-l 593V.

        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.




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       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 tenns 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 shoulder

injury or any other injury or condition.

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

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

                                      END OF STIPULATION

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 Respectfully submitted,

 PETfflONER:




 ATTORNEY OF RECORD FOR                              AUTHORIZED REPRSENTATIVE
 PETITIONER:

 ~
 DIANAELNIKAS
                . v- -                               OF THE ATIORNEY GENERAL:




,tagtioCllnsropha'-&TOlle, P.A.
  160S Main Streei Suite 710                         Torts Branch
  Sarasota. FL                                       Civil Division
  (888) 9S2-S242                                     U.S. Department of Justice
                                                     P.O. Box 146
                                                     Benjamin Franklin Station
                                                     Washington; DC 20044-0146


 AUTHORIZED REPRESENTATIVE                           A1TORNEY OF RECORD FOR
 OF THE SECRETARY OF HEALTH                          RESPONDENT:
 AND HUMAN SERVICES:

   uJ&tds~~
 TAMARA OVERBY                                        A ILLEM.COL
 Acting Director, Division of lrtjury Compensation   Trial Attorney
        Programs (DICP)                              Torts Branch
 Healthcare Systems Bureau                           Civil Division
 Health Resources and Services Administration        U.S. Department of Justice
 S600 Fishers Lane                                   P.O. Box 146
 Parklawn Building. Mail Stop 08N 1468               Benjamin Franklin Station
 Rockvill~ MD 208S7                                  Washington, DC 20044-0146
                                                     Tel: (202) 616-4098


 bATE:   q ( 1't / (~


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