         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 17-1400V
                                      Filed: July 5, 2019
                                        UNPUBLISHED


    CONNIE FONG,

                        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.


Michael Arvin Fireston, Marvin Firestone, MD, JD, and Associates, San Mateo, CA, for
petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

       On October 2, 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”) which was caused by an influenza (“flu”) vaccine received on
October 2, 2014. Petition at 1, 6; Stipulation, filed July 2, 2019, at ¶¶ 1-4. Petitioner
further alleges that the vaccine was administered in the United States, that she
experienced the residual effects of her injury 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 her
condition. Petition at 6; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner
sustained a SIRVA Table injury and denies that petitioner’s alleged SIRVA and its

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).
residual effects were caused-in-fact by her flu vaccine. Respondent further denies that
the flu vaccine caused petitioner any other injury or her current condition.” Stipulation at
¶ 6.

        Nevertheless, on July 2, 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 $45,000.00 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

 CONNIE FONG,

                        Petitioner,
                                                         No. 17-1400V
       v.
                                                         Chief Special Master Dorsey
                                                         ECF
 SECRETARY OF HEALTH AND
 HUMAN SERVICES,

                        Respondent.

                                            STIPULATION

The parties hereby stipulate to the following matters:

        1. Petitioner Coiu1ie Fong ("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 ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the

"Table"), 42 C.F.R. § 100.3(a).

       2. Petitioner received her flu immunization on October 2, 2014.

       3. The vaccine was administered within the United States.

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

("SIRVA") within the time period set forth in the Table, or in the alternative, that her alleged

shoulder injury was caused by the flu vaccine she received, and forther alleges that she

experienced the residual effects of her 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 her condition.
        6. Respondent denies that petitioner sustained a SIRVA Table injury and denies that

petitioner's alleged SIRVA and its residual effects were caused-in-fact by her flu vaccine.

Respondent further denies that the flu vaccine caused petitioner any other injury or her current

condition.

        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 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 $45,000.00 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, aud after

petitioner has filed both a proper and timely election to receive compensation pursuant to 42

U.S.C. § 300aa-2 l(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- l 5(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.



                                                  2
        11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to

paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa- l 5(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 constrnction 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 payments described in paragraphs 8 and 9, petitioner, in her

individual capacity, and on behalf of her 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 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 Cou1t 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 vaccination administered on October 2, 2014, as

alleged by petitioner in her petition for vaccine compensation filed on October 2, 2017, in the

United States Court of Federal Claims as petition No. 17- 1400V.

        14. If petitioner should die prior to entry of judgment, this agreement shal I be voidable

upon proper notice to the Court on behalf of either or both of the parties.




                                                     3
        I5. If the special master fails to issue a decision in complete confo1mity with the tenns

of this Stipulation or if the Court of Federal Claims fails to enter judgment in 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 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 vaccination 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 STIPULATrON
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                                                  4
           To : 1 650212 4905      Fr om : 16506866919   Date: 06/25/19     Time: 11: 51 .AM PagQ : 02

FROM   Fong (650)344-8860                      PHON: NO. : 344 8860                    Jun. 25 2019 03: 01PM P2




         Respectfully submitted,


         PETITIONER:




         ATTORNEYOFkECORDFOR                                 AUTHORIZED llEPRESENTATIVF,
         PETITIONER:                                           THE ATTORNEY GENERAL:
                                                               AA.I-~'         ~L___
                                                                                   _
          ~ ~9~
         MfCHAEL FIRESTONE
         Marvjn Firestone M.D., J.D. & Associates                      iteetor
         1700 South El Camino Real, Suite 204                Torts Branch
         San Mateo, CA 94402                                 Civil Division
         (650) 212-4900                                      U.S. Department of Justice
                                                             P.O. Box 146
                                                             Benjamin Franlc.lin Stati<ln
                                                             Wallhington. DC 20044-0146



         AUTHORIZED REPRESENTATIVE                           ATTORNEY OF RECORD FOR
         OFTHESECRETARYOFHEALTB                              RESPONDENT:
         AND HUMA.'llli S.ERVICES:



         NARAYAN NAIR, M.D.
                                                            ~
                                                            ADRlANATEITEL
                                                                                  ffar;;>
         I>irector, Division of                              Trial Attorney
         Injury Compensation Program:;                       Torts Branch
         Healthcare Systems Bureau                           Civil Division
         U.S. Department of Health                           U.S. Department of Justice
         and Ruman Services                                  P.O. Bo,: 146
         5600 Fishers Lane                                   Benjamin Franklin Station
         Parlclawn Building. Mail Stop 08-Nl46B              Washington, DC 20044-0146
         Rockville, MD 20857                                 (202) 616-3677




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