         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 17-864V
                                    Filed: September 6, 2018
                                         UNPUBLISHED


    LINDSEY KUENG,
                                                             Special Processing Unit (SPU); Joint
                        Petitioner,                          Stipulation on Damages; Tetanus
    v.                                                       Diphtheria acellular Pertussis (Tdap)
                                                             Vaccine; Shoulder Injury Related to
    SECRETARY OF HEALTH AND                                  Vaccine Administration (SIRVA)
    HUMAN SERVICES,

                       Respondent.


Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On June 26, 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 that she suffered a right shoulder injury related to vaccine
administration (“SIRVA”), which was caused by administration of the tetanus, diphtheria,
acellular-pertussis (“Tdap'”) vaccine she received on May 21, 2016. Petition at 1;
Stipulation, filed September 6, 2018, at ¶¶ 2, 4. Petitioner further alleges that she
suffered the residual effects of her injuries for more than six months. Petition at 3;
Stipulation at ¶ 4. “Respondent denies that the Tdap vaccine caused petitioner’s
alleged right SIRVA, or any other injury, and further denies that petitioner’s current
disabilities are sequelae of a vaccine related injury.” 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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.

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).
       Nevertheless, on September 6, 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 $80,098.71 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 COURT OF FEDERAL CLAIMS
                              OFFICE OF SPECIAL MASTERS

LINDSEY       KUENG,

                          Petitioner,


       v.                                                 No. 17-864V
                                                          ChiefSpecial Master Dorsey
SECRETARY OFHEALTH AND                                     ECF-SPU
HUMAN SERVICES,

                          Respondent.



                                            STIPULATION


       The    parties hereby stipulate to the following matters:

        I. Lindsey Kueng      ("petitioner") filed a petit�on 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 tetanus,   diphtheria, acellular-pertussis ("Tdap'') vaccine, which vaccine is contained in the

Vaccine I11jury Table (the    "Table"),42 C.F.R. §    100.3(a).

        2. Petitioner   received a Tdap vaccine in her right deltoid on or about May 21, 2016.

        3.   The vaccine was administered within the United States.
        4. Petitioner alleges that she suffered a right shoulder   injury related to vaccine

administration ('�SIRVA"), which was       caused   by administration of the Tdap vaccine. Petitioner


further alleges that she suffered the residual effects of her injuries 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 conditiOn.




                                                      1
         6. Respondent denies         that the Tdap vaccine caused petitioner's alleged right SIRVA, or

any other injury, and further        denies that petitioner's current disabilities are sequelae ofa vaccine-

related injury.


         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    saon as ptacticable after an entry ofjudgment reflecting a decision consistent with

the ter.ms 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 $80,098. 71 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-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.

         10. Petitioner and her attomey represent that they hav e identified to respondent all


known    sources    of payment for items or servicesforwhich 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 prepaid basis.




                                                            2
•,




               11. Payment made pursuant to paragraph. 8, and any         amounts awarded pursuant to

     paragraph 9 ofthis      Stipulation, 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 attorneys' 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·15(a):ana (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, and assigns,

     does forever irrevocably      and unconditionally release,    acquit and discharge the United States and
     the Secretary    ?fHealth and Human Services from any and all actions or causes o� action

     (including agreements, judgments, claims, damages, loss of services, expenses and all demands

     of whatever     kind. or natute) that have been brought, could have been brought, or could be timely

     brought in the United States Court of Federal Claims, under the National Vaccine Injury
     Compensation Program, 42 U.S.C.            § :lOOaa-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 Tdap vaccine administered on

      May 21, 2016,     as   alleged by petitioner in a petitiqn for vaccine compensation filed on June 26,
      2017,    in the United States Court.of Federal Claims as petition No. 17-864V.

                14. If petitioner should die prior to entry ofjudgment, 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 United States Court of Federal Claims fails to enter judgment in



                                                              3
 confonnity with a decision that is in complete confonnity 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 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 thin,g 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 ot revise this agreement.

          17. This Stipulation shall not be construed             as an   admission by the   United States or the

 Secretary of Health and Human ServiGes that the Tdap                 vaccine caused petitioner's alleged right

 SIRV A1   or   any   gther injury,   or   that her currertt disabilities are sequelae of her alleged vaccine-

. related injury.


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

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

 I


                                               END OF STIPULATION
 I




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Respectfully submitted,


PETITIONER:.




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




LEAH V. DURANT, ESQ.                                  CATHARINE E. REEVES
1717 K Street, NW, Suite 900                          Deputy Director
Washington, DC 20006                                  Torts   Branch
Tel: (202) 775-9200                                   Civil Division
                                                      U.S. Department   of Justice
                                                      P. 0. Box 146
                                                      Benjamin Franklin Station
                                                      Washington, DC 20044-0146


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




        M              AJa:a
 NARAY:rM.D.
. Director                                             Senior Trial Attorney
 Division of Injury 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. 0. Box 146
 5600 Fishers Lane                                     Benjamin Franklin Station
 Parklawn Building, Stop 08N146B                       Washington, DC 20044-0146
 Rockville, MD 20857                                   Tel:   (202) 616-4099

 DATE:       "I!< I le

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