         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 18-0066V
                                     Filed: October 4, 2019
                                         UNPUBLISHED


    DONALD NEARING,

                        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.


Brian Burchett, Burchett Law Firm, San Diego, CA for petitioner.
Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION 1

Corcoran, Chief Special Master:

       On January 12, 2018, 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 he suffered Shoulder Injury Related to Vaccine
Administration (SIRVA). Petition at 1; Stipulation, filed September 30, 2019, at ¶¶ 4.
Petitioner further alleges that his shoulder and arm symptoms first manifested within 48
hours of administration of the influenza vaccination and that he experienced residual
effects of his injury for more than six months. Petition at 1, 3; Stipulation at ¶¶ 4.
Respondent “denies that petitioner sustained a Table SIRVA injury, and denies that the
influenza or pneumococcal vaccine caused petitioner to suffer from a shoulder injury or
any other injury.” Stipulation at ¶ 6.


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 Because this unpublished decision contains a reasoned explanation for the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).
       Nevertheless, on September 30, 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 $22,500.00 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/Brian H. Corcoran
                                          Brian H. Corcoran
                                          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

                                               )
DONALD NEARING.                                )
                                               )
               Petitioner,                     )
                                               )     No. 18..66V
V.                                             )     Chief Special Master Dorsey
                                               )     ECF
SECRETARY OF HEALTH                            )
AND HUMAN SERVICES,                            )
                                               )
               Respondent.                     )



                                            STIPULATION

       The parties hereby stipulate to the following matters:

        1. Donald Nearing ("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 an influenza vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42

C.F.R. § 100.3(a).

       2. Petitioner received the influenza vaccine on or about February 22, 2016, and a

pneumococcal vaccine on April 14, 2016.

       3. The vaccines were administered within the United States.

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

("SIRVA") as a result of receiving an influenza vaccine, and experienced the residual effects of

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

influenza or pneumococcal vaccine caused petitioner to suffer from a shoulder injury or any

other 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 tenns of this Stipulation, and after petitioner has filed both a proper and timely election to

receive compensation pursuant to 42 U.S.C. § 300aa-21(aX1), the Secretary of Health and

Human Services will issue the following vaccine compensation payment:

       A lump sum of $22,500.00 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-21(a)(l), and an application, the parties will submit to further proceedings before

the Chief Special Master to award reasonable attorneys' fees and costs incurred in proceeding

upon this petition.

       10. Petitioner and his 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 XlX of the Social Security Act (42

U.S.C. § 1396 et. Seq.)), or entities that provide health services on a pre-paid basis.




                                                  2
        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 attorneys' 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-l 5(a) and (d), and subject to the conditions of 42 U.S.C.

§ 300aa-1 S{g) and {h).

        I 3. In return for the payment described in paragraph 8, and any amount av.:arded

pursuant to paragraph 9, petitioner, in his individual capacity, ahd on behalf of his 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 United States

Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C.

§ 300aa-l 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, the influenza vaccine administered on or about February 22, 2016, or the

pneumococcal vaccine administered on or about April 14, 2016, as alleged by petitioner in a

petition for vaccine compensation filed on or about January 12, 2018, in the United States Court

of Federal Claims as petition No. 18-66V.




                                                  3
        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 Chief 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

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

$ecretary of Health and Human Services that the influenza or pneumococcal vaccine caused

petitioner to suffer a shoulder 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,




 ATT~~~FRECORDFO .                    .            AUTHORIZED REPRESENTATIVE

   PE~~7
/( ~   ___ /4~-
    /0jURctfu:               L, ~     -
                                                   OF THE ATTORNEY GENERAL:
                                                                     z:,____
 The Burchett Law Firm, PC
 605 C Street
 Suite 300                                         Civil Division
 San Diego, CA 92101                               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:



 TAMARA OVERBY                                     ROBERT P. COLEMAN III
 Acting Director, Division of Vaccine              Trial Attorney
 Injury Compensation (DVIC), Acting Director       Torts Branch
 Countermeasures injury Compensation               Civil Division
 Program (CICP)                                    U.S. Department of Justice
 Healthcare Systems Bureau, U.S. Department        P.O. Box 146
 Of Health and Human Services                      Benjamin Franklin Station
 5600 Fishers Lane                                 Washington, DC 20044-0146
 Parklawn Building, Mail Stop 1IC-26               (202) 305-0274
 Rockville, MD 20857


 Dated: ~             ~o,W\'1


                                               5
