     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-1654V
                                         UNPUBLISHED


    GARETH ACTON,                                             Chief Special Master Corcoran

                         Petitioner,                          Filed: March 18, 2020
    v.

    SECRETARY OF HEALTH AND                                   Special Processing Unit (SPU); Joint
    HUMAN SERVICES,                                           Stipulation on Damages; Influenza
                                                              (Flu) Vaccine; Shoulder Injury
                        Respondent.                           Related to Vaccine Administration
                                                              (SIRVA)


Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.

Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION ON JOINT STIPULATION1

        On October 25, 2018, Gareth Acton 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 a left shoulder injury related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine received on
December 8, 2017. Petition at 1; Stipulation, filed March 18, 2020, at ¶¶ 1-4. Petitioner
further alleges that the vaccine was administered in the United States, he experienced
the residual effects of his injury for more than six months, and there has been no prior
award or settlement of a civil action for damages as a result of his condition. Petition at
1, 6; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a SIRVA Table
injury, and further denies that the flu vaccine caused petitioner’s alleged left shoulder
injuries and residual effects, or any other injury.” Stipulation at ¶ 6.


1
  Because this unpublished decision contains a reasoned explanation for the action in this case, I am
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). 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, I agree that the identified material fits within this definition, I 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).
       Nevertheless, on March 18, 2020, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. I find the stipulation
reasonable and adopt it as my decision awarding damages, on the terms set forth
therein.

     Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:

        A lump sum of $85,000.00 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), including pain and suffering and
        lost earnings. Id.

       I approve 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

                                                       )
GARETH ACTON,                                          )
                                                       )
                        Petitioner,                    )
                                                       )       No. 18-1654 V (ECF)
V.                                                     )       Chief Special Master Corcoran
                                                       )
SECRETARY OF HEALTH                                    )
AND HUMAN SERVICES,                                    )
                                                       )
                       Respondent.                     )


                                          STIPULATION

        The parties hereby stipulate to the following matters:

        I.      Gareth Acton ("petitioner") filed a petition for vaccine compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-l Oto -34 (the •·vaccine

Program"). The petition seeks compensation for injuries allegedly sustained following

petitioner's receipt of an influenza ("flu") vaccine. which vaccine is contained in the Vaccine

Injury Table (the "Table"), 42 C.F.R. § I00.3(a).

        2.      Petitioner received a flu vaccine on December 8, 2017.

        3.     The vaccine was administered within the United States.

        4.     Petitioner alleges that he sustained the first symptom or manifestation of onset of

a left Shoulder Injury Related to Vaccine Administration (''SIRVA ..) within the time period set

forth in the Table. Petitioner further alleges that he experienced the residual effects of his

SIRVA 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 SIRVA Table injury, and further

denies that the flu vaccine caused petitioner's alleged left shoulder injuries and residual effects,

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 terms of this Stipulation, and after petitioner has filed an election to receive

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

Services will issue the following vaccine compensation payment:

               A lump sum of $85,000.00 in the form of a check payable to petitioner,
               Gareth Acton, which amount represents compensation for all damages that
               would be available under 42 U.S.C. § 300aa-l 5(a), including pain and
               suffering and lost earnings.

        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 rea~onable attorneys· fees and costs incurred in proceeding

upon this petition.

        I0.    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- I5(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. § 1396



                                                  2
et seq.), or by entities that provide health services on a pre-paid basis.

        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, 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-l 5(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 Secretary of

Health and Human Services and the United States of America 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 Court of Federal Claims, under the National Vaccine Injury

Compensation Program, 42 U.S.C. § 300aa- IO 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 8, 20 I7, as alleged by petitioner in a petition for vaccine compensation tiled on or

about October 25, 2018, in the United States Court of Federal Claims as petition No. I8-1654 V.

        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 confonnity with the


                                                     3
terms of this Stipulation, or if the Court of Federal Claims fails to enter judgment in conformity

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 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 of

America or the Secretary of Health and Human Services that petitioner·s alleged left shoulder

injuries and residual effects, or any other injury, were caused by the flu vaccine.

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

petitioner~s heirs, successors and/or assigns.

                                     END OF STIPULATION

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R espectfully submitted.

PETITIONER:




ATTORNEYOFRECOROFOR                        AUTHORIZED IU:PRESENTA TIVE
PETITIONER~                                0 THE ATTORNEY GENERI\.L:
                                              ~                - C£_t____,
                                                  ARlNE E. REEVES
      1 J Sayad, P.C.                      Deputy Director
75 South Broadway                          To1ts Branch, Civi l Divi1;ion
4th Floor                                  U.S. Department of Justice
White Plains, NY I0601                     P.O. Box 146
(914) 729-1110                             Hcnjamin Franklin Station
                                           Washington, DC 20044-0146


AUTHORIZED REPRESENTATIVE                  ATTORNEY OF RECORD FOR
OF THF. SECIU:TARY OF HEALTH
AND RUMAi~ S.llRVICES:                     v~NI ~.1t-
  wa.A.d s~~tf                1..
                                             ~ ~ LL---
TAMARA OVERBY                              V ORrs E. JOHNSON. JR.
Acting Director, Division of Injury        Senior Trial Attorney
  Compensation Programs (OlCP)             Torts Rrnnch
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 Stal1on
Parklawn Building, Mail Stop 08N146B       Wnsh ington, OC' 20044-0146
Rockville, MD 208.57                       (202) 616-4136


Dated:                I
         o'? \ '" z_o "2, O




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