                  In the United States Court of Federal Claims
                                       OFFICE OF SPECIAL MASTERS
                                              No. 15-571V

*********************
                       *
HILTON H. DIER,        *                                          Filed: July 8, 2016
                       *
           Petitioner, *                                          Decision by Stipulation; Damages;
                       *                                          Influenza (“Flu”) Vaccination;
v.                     *                                          Shoulder Injury Related to Vaccine
                       *                                          Administration (“SIRVA”).
SECRETARY OF HEALTH    *
AND HUMAN SERVICES,    *
                       *
           Respondent. *
                       *
*********************

Paul S. Dannenberg, Huntington, VT, for Petitioner.

Darryl R. Wishard, U.S. Dep’t of Justice, Washington, DC, for Respondent.

                                     DECISION AWARDING DAMAGES1

        On June 5, 2015, Hilton H. Dier, III, filed a petition seeking compensation under the National
Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that he suffered from
a shoulder injury related to vaccine administration (“SIRVA”) as a result of his December 4, 2012,
receipt of the influenza (“flu”) vaccine. Moreover, Petitioner alleges that he experienced residual
effects of this injury for more than six months.

        Respondent denies that the flu vaccine 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. Nonetheless both parties, while maintaining their above-stated positions, agreed in a


1
  Because this decision contains a reasoned explanation for my actions in this case, I will 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 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds
of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request
redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance
and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute
a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the
public. Id.
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100
Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual
section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
stipulation (filed on July 5, 2016) that the issues before them could be settled, and that a decision
should be entered awarding Petitioner compensation.

        I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
(as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the
terms set forth therein.

         The stipulation awards:

            A lump sum of $50,000.00 in the form of a check payable to Petitioner.  

Stipulation ¶ 8. This amount represents compensation for all damages that would be available under
Section 15(a) of the Act.

        I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment herewith.3


         IT IS SO ORDERED.

                                                                     /s/ Brian H. Corcoran
                                                                        Brian H. Corcoran
                                                                        Special Master




3
  Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.

                                                            2
             IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                           OFFICE OF SPECIAL MASTERS
___________________________________
                                      )
HILTON H. DIER, III,                  )
                                      )
               Petitioner,            )    No. 15-571V ECF
                                      )
            v.                        )    Special Master Corcoran
                                      )
SECRETARY OF HEALTH                   )
AND HUMAN SERVICES,                   )
                                      )
              Respondent.             )
___________________________________ )

                                           STIPULATION

       The parties hereby stipulate to the following matters:

       1.    Petitioner, Hilton H. Dier, III, 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 is contained in the Vaccine Injury Table (the “Table”), 42

C.F.R. § 100.3(a).

       2.    On December 4, 2012, petitioner received the flu vaccine.

       3.    The flu vaccine was administered within the United States.

       4.    Petitioner alleges that, as a result of receiving the flu vaccine, he suffered from a

shoulder injury related to vaccine administration (“SIRVA”), and that he experienced symptoms

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 result of his alleged injury.


                                                   1
       6.    Respondent denies that the flu 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.

       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)(1), the Secretary of Health and Human

Services will issue the following vaccine compensation payment:

                A lump sum of $50,000.00, 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. Section 300aa-21(a)(1), 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 his attorney represent that compensation to be provided pursuant to

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

under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be

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

State health benefits programs (other than Title XIX 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 of this Stipulation, 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.

       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) 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 his

individual capacity and on behalf of his 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, 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-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 flu vaccine administered on December 4, 2012, as alleged by

petitioner in a petition for vaccine compensation filed on or about June 5, 2015, in the United

States Court of Federal Claims as petition No. 15-571V.

       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

                                                  3
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.

       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 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 received by petitioner either caused or

significantly aggravated petitioner’s alleged injury or any other injury.

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

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

                                    END OF STIPULATION




                                                  4
Respectfully submitted,

PETITIONER:



______________________________
HILTON H. DIER, III

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



______________________________             ______________________________
PAUL S. DANNENBERG, ESQ.                   CATHARINE E. REEVES
Attorney at Law                            Acting Deputy Director
P.O. Box 187                               Torts Branch
Huntington, VT 05462                       Civil Division
(802) 434-3901                             U.S. Department of Justice
                                           P.O. Box 146
                                           Benjamin Franklin Station
                                           Washington, DC 20044-0146

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


_____________________________              _____________________________
NARAYAN NAIR, M.D                          DARRYL R. WISHARD
Acting Director, Division of Injury        Senior Trial Attorney
  Compensation Programs                    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: ______________________



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