        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-0380V
                                   Filed: September 12, 2016
                                         UNPUBLISHED

****************************
MARLENE CIMONS,                           *
                                          *
                     Petitioner,          *      Joint Stipulation on Damages;
v.                                        *      Pneumococcal Conjugate Vaccine;
                                          *      Left Shoulder Injuries; Special
SECRETARY OF HEALTH                       *      Processing Unit (“SPU”)
AND HUMAN SERVICES,                       *
                                          *
                     Respondent.          *
                                          *
****************************
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

       On March 24, 2016, Marlene Cimons (“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 left
shoulder injuries as a result of a pneumococcal conjugate vaccine she received on
December 18, 2014. Petition at 1-2; Stipulation, filed September 12, 2016, at ¶ 4.
Petitioner further alleges that she experienced the residual effects of this injury for more
than six months. Petition at 3; Stipulation at ¶ 4. “Respondent denies that the vaccine
either caused or significantly aggravated petitioner’s alleged injury or any other injury,
and denies that petitioner’s current disabilities are the result of a vaccine-related injury. ”
Stipulation at ¶ 6.

       Nevertheless, on September 12, 2016, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. The

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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
undersigned finds the stipulation reasonable and adopts it as the decision of the Court
in awarding damages, on the terms set forth therein.

        The parties stipulate that petitioner shall receive the following compensation:

        A lump sum of $91,721.28, 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

                                                              )
MARLENE C IMONS,                                              )
                                                              )
                         Petitioner,                          )         No. I 6-380V          ECF
                                                              )
                    v.                                        )         Chief Special Master Dorsey
                                                              )
SECRETARY OF HEALTH                                           )
AND HUMAN SERVICES ,                                          )
                                                              )
     Responjent. )
~~~~~~~~~~~~~~ )

                                                       STIPULATION

         The parties hereby stipulate to the fo llowi ng matters:

          1.    Petitioner, Marlene Cimons, fil ed a petitio n for vaccine compensation under the

National Vaccine Inj ury Compensation Program, 42 U.S.C. §§ 300aa- I 0 to 34 (the ''Vaccine

Program").        The petition seeks compensation for injuries a llegedl y related to petitioner's receipt

of the pneumococcal conjugate vacc ine ("vaccine"), which is contained in the Vaccine Injury

Tab le (the "T able"), 42 C.F. R. § I00.3(a).

          2.   O n December 18, 20 14, petitioner received the vaccine.

         3.    T he vaccine was admini stered within the United States.

         4.     Petitioner alleges that, as a result o f receiving the vaccine, she s uffered fro m a

shoulder injury re lated to vaccine administration ("SIRVA"), and that she experienced symptoms

of this injury for more than six months.

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

for damages as a result of her alleged injury.




 rour r e ceipt mus t oe rece1vea oy i:I p1<1n s c1<11m a eaa1111e 111 urue1 Lo u e 1,;011::.1uen::u 1u1 f1dy111e11L.
        6.    Respondent denies that the vaccine either caused or significantly aggravated

petitioner's alleged inj ury or any other injury, and de nies that petitioner's current disabilities are

the result of a vaccine-related injury.

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

issues between them shall be settled and that a deci sion s hould be entered awarding the

compensation described in pa ragraph 8 of this Stipulation.

        8.    As soon as practicable after an entry o f judgment reflecting a decision consistent

with the te1ms of this Stipulation, and after petitioner has fil ed an election to receive

compensation pursuant to 42 U.S.C. § 300aa-2 I (a)( l ), the Secretary of Health and Human

Services w ill issue the fo llowing vacc ine compensation payment:

                   A lump sum of $9 1, 72 1.28, 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- 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 e lection to receive compensation pursuant to

42 U.S.C. Section 300aa-2 l (a)( I), and an appl ication, the parties w ill s ubmit to fu11her

proceedings before the spec ia l master to award reasonable attorneys' fees and costs incurred in

proceeding upon this petition.

        10.    Petitioner and her attorney represent that compensation to be provided pursuant to

this Stipulation is not for any items or serv ices for which the Program is not primarily liable

under 42 U.S.C. § 300aa- l 5(g), to the extent that payment has been m ade or can reasonabl y be

expected to be made under any State compensation programs, insurance policies, Federal or

State health benefits programs (other than Title X IX 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 o f this Stipul ation, and any amounts

awarded pursuant to paragraph 9 o f this Stipulation, will be made in accordance with 4 2 U.S.C.

§ 300aa- l 5(i), subj ect to the availability o f suffic ient statutory funds.

         12.    The pa11ies and the ir attorneys fu11her agree and stipulate that, except for any award

for attorneys' fees and litigatio n costs, the money prov ided pursuant to thi s Stipulation will be

used sole ly for the bene fi t of petitioner, as contemplated by a strict constructio n of 4 2 U .S.C.

§ 300aa- l 5(a) and (d), and subj ect to the conditions o f 42 U. S.C. §§ 300aa- l 5(g) and (h).

         13.     In return fo r the payments described in paragraphs 8 and 9, petitioner, in her

individual capacity and o n behalf of her heirs, executo rs, administrators, successors o r assigns,

does forever iITevocably and unconditionally release, acquit and discharge the United States and

the Secretary of Health and Human Serv ices from any and a ll actions, causes of action (including

agreeme nts, judgments, cla ims, damages, loss o f services, expenses and all demands o f w hatever

kind or nature) that have been brought, could have been brought, or could be time ly brought in

the Court of Fed eral C laims, under the Nationa l Vacc ine Injury Compensation Program, 42

U.S.C. § 300aa-I 0 et seq., on account o f, or in any way grow ing out o f, any and all known or

unknown, s uspected or unsuspected persona l inj uries to or death of petitioner resulting from, or

all eged to have resulted from, the vaccine admin istered o n Decembe r 18, 20 14, as alleged by

petitioner in a petition for vacc ine compensatio n fil ed on or about Marc h 24, 20 16, in the Un ited

States Court of Federal Claims as petition No. I 6-380V.

         14.     If petitioner should die prior to entry o f j udgment, this agreement shall be vo idable

upon proper notice to the Court on behalf o f either or both of the pa11ies.

         15.     If the special master fails to issue a decision in complete confonnity w ith the te1ms

                                                                3




 rour re ceipt must oe rece1vea oy i:I p1<1n s c1<11m a e aa1111e 111 urue1 Lo ue 1,;011::.1uen::u   1u1   fldy111e11L.
of this Stipulation or ifthe Court o f Federal Claims fa ils to enter judgment in con formity with a

decis ion that is in complete confo rmity w ith the terms o f this Stipulation, then the parties'

settle ment and this Stipulation shall be voidable at the sole discretion of either party.

        16.   This Stipulation expresses a full and complete negotiated settlement o f li ability and

damages cla imed unde r the National C hildhood Vaccine Injury Act o f 1986, as amended, except

as otherwise noted in pa ragraph 9 above.      There is absolutely no agreement on the pa rt o f the

pa1ties hereto to make any paym ent o r to do any act or thing other than is herein expressly stated

and clearl y agreed to.   The parties fu1ther agree and understand that the award described in thi s

stipul ation may re flect a compromi se o f the parties' respecti ve positions as to liability and/o r

amount of dam ages, and further, that a c hange in the nature of the injury or condition or in the

items of compensation sought, is not grounds to modi fy 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. A ll rights and obli gations o f petitioner hereunder sha ll appl y equally to petitioner's

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

                                      EN D OF STIPULATIO N




                                                     4
  Respectfully submitted,

  PETITIO NER:



fit ~eviu Lf~/"9
 MARLENE CIMONS

 ATTORNEY OF RECOR D FOR                                              AUTHORIZED REPRESENTATIVE
 PETITIO NER:                                                         OF THE ATTORNEY GENERAL:



~PAULR. BRAZIL
 Muller Brazil LLP
                                                                                NEE. REEVES
                                                                                                                            -
                                                                     Acting Deputy Director
 71 S Twining Road, Suite I07                                        Torts Branch
 Dresher, PA 19025                                                   Civil Division
 (215) 885-1655                                                      U.S. Department of Justice
                                                                     P.O. Box 146
                                                                     Benjam in Franklin Station
                                                                     Washington, DC 20044-0146
 AUTHORIZED REPRESENTATIVE                                           ATTORNEY OF RECOR D FOR
 OFTHE SECRE     OF HEALTH                                           RESPONDENT:
AND HU                   R\11 ES:



              AIR, M.D '
Acting Director, Division of Injury
  Compensation Programs
                                                               ~    Senior Trial Attorney
                                                                    Torts 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 08N146B                                Washington, DC 20044-0146
Rockville , MD 20857                                                Tel: (202) 616-4357



Dated:      q    Ir -i-/ J ~
                                                              5




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