         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 17-0349V
                                      Filed: July 26, 2019
                                        UNPUBLISHED


    CAROLE MILLER,

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


Joseph Alexander Vuckovich, Maglio Christopher & Toale, PA, Washington, DC, for
petitioner.
Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

        On March 15, 2017, Carole Miller (“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 left shoulder injury due
to an influenza (“flu”) vaccine she received on November 19, 2015. Petition at 1;
Stipulation, filed July 26, 2019, at ¶¶ 2, 4. Petitioner further alleges that she suffered
the residual effects of her injury for more than six months. Petition at 2. “Respondent
denies that the influenza immunization caused petitioner’s alleged shoulder injury or any
other injury or her current condition.” 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 Because this unpublished decision contains a reasoned explanation for the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).
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 July 26, 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 $80,000.00 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.

                                                      2
                IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                              OFFICE OF SPECIAL MASTERS

                                              )
CAROLE MILLER,                                )
                                              )
               Petitioner,                    )
                                              )         No. 17-349V
V.                                            )         Chief Special Master Dorsey
                                              )         ECF
SECRETARY OF HEALTH AND                       )
HUMAN SERVICES,                              )
                                             )
____________   Respondent.                   )
                                          __,)

                                         STIPULATION

       The parties hereby stipulate to the following matters:

       1. 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 the influenza vaccine,

which vaccine is contained in the Vaccine Injury Table ("Table..), 42 C.F.R. § 100.3(a).

       2. Petitioner received an influenza immunization on November 19, 2015.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that she suffered a shoulder injury as a result of receiving the

influenza vaccine.

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

for damages on her behalf as a result of her condition.

       6. Respondent denies that the influenza immunization caused petitioner's alleged

shoulder injury or any other injury or her current condition.



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        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-2l(a)(l), the Secretary of Health and Human Services will issue a
                          .         .
lump sum payment of $80,000.00 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. § 300aa-21(a)(l), and an applic~tion, 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 compensation to be provided pursuant to

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

under42 U.S.C. § 300aa-1S(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 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 m&Qe in accordance with 42 U.S.C. § 300aa-15(i), subject

to the availability of sufficient statutory funds.




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        12. The parties and their-attorneys further agree and stipulate that, except for any award

for attorneys' fees, 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-1S(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 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 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 influen7.a vaccination administered on or about

November 19, 2015, as alleged by petitioner in a petition for vaccine compensation filed on or

about March 15, 2017, in the United States Court of Federal Claims as petition No. l 7-349V.

        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

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.


                                                 -3-
       16. This Stipulation expresses a full and complete negotiated settlement of liability and

damages claimed wider 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 describ~ 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 ~e

Secretary of Health and Human Services that the influenza vaccine caused petitioner's aJleged

shoulder injury or any other injury or her current condition.

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

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

                                    END OF STIPULATION

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..



     Respectfully submitted,

     PETITIONER:




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


      ~A~
     JSEPHA.vucKOVICH, ESQ.
     Maglio Christopher & Toale
     177S Pennsylvania Avenue, NW, Suite 225
     Washington, DC 20006                                 Civil Division
     (914) 952-5242                                       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:

      Wtua!s,,~~~                                         ~    \1:--:P~
     NARAYAN NAIR, M.D.                                   Jl:JSTINE-W~RS ~'EK L- ~~<.Ul--ifYJ
     Director, Division oflnjury                          l=riel Attomey      ,q. s.s:r~ bi l<~L f?Ji(,,
     Compensation Programs (DICP)                         Torts Branch
     Healthcare Systems Bureau                            Civil Division
     Health Resources and Services Administration         U.S. Department of Justice
     U.S. Department of Health                            P.O. Box 146
     and Human Services                                   Benjamin Franklin Station
     S600 Fishers Lane                                    Washington, DC 20044-0146
     Parklawn Building, Mail Stop 08Nl46B                 (202) l07 6393 3S3~Zh'1Cf
     Rockville, MD 20857


     Dated:



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