     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-1269V
                                         UNPUBLISHED


    RICHARD WEATHERLY,                                        Chief Special Master Corcoran

                         Petitioner,                          Filed: June 18, 2020,
    v.
                                                              Special Processing Unit (SPU); Joint
    SECRETARY OF HEALTH AND                                   Stipulation on Damages; Influenza
    HUMAN SERVICES,                                           (Flu) Vaccine; Shoulder Injury
                                                              Related to Vaccine Administration
                        Respondent.                           (SIRVA)


Anne Carrion Toale, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.

Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.



                               DECISION ON JOINT STIPULATION 1

        On August 22, 2018, Richard Weatherly filed a 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 Shoulder Injury Related
to Vaccine Administration (SIRVA) as a result of his October 17, 2016 influneza (“flu”)
vaccination. Petition at ¶¶ 1, 8; Stipulation, issued at June 16, 2020, ¶¶ 2, 4. Petitioner
further alleges that the vaccine was administered within the United States, that he
suffered the residual effects of his injury for more than six months, and that there has
been no prior award or settlement of a civil action on his behalf as a result of his injury.
Stipulation at ¶¶ 3-5; see Petition at ¶¶1, 10, 13-14. “Respondent denies that petitioner
sustained a SIRVA Table injury; and denies that his current condition is a sequelae of a
vaccine-related 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  Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 June 16, 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 $72,500.00 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.

       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

                                               )
RICHARD WEATHERLY,                             )
                                               )
               Petitioner,                     )      No. I 8- I269V
                                               )      Chief Special Master
       V.                                      )      Brian H. Corcoran
                                               )
SECRETARY OF HEALTH AND                        )
HUMAN SERVICES,                                )
                                               )
               Respondent.                     )



                                            STIPULATION

       The parties hereby stipulate to the following matters:

        I. Richard Weatherly, 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 ("flu"), which vaccine is contained in the Vaccine Injury Table (the

"Table"), 42 C.F.R. § I 00.3(a).

       2. Petitioner received a flu vaccination on or about October 17, 2016.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that he sustained a Shoulder Injury Related to Vaccine

Administration ("SIRVA") within the time period set forth in the Table. He further alleges that

he experienced the residual effects of this condition 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 denies that his

current condition is a sequelae 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)(l ), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

        A lump sum of $72,500.00 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- l 5(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)( 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 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 XIX of the Social Security Act (42

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

        11. Payments made pursuant to paragraph 8 of this Stipulation, and any amount 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

                                                    2
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- I 5(a) and (d). and subject to the conditions of 42 U.S.C.

§ 300aa- I 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 and/or

assigns. docs 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 flu vaccination administered on or

about October 17, 2016. as alleged by petitioner in a petition for vaccine compensation filed on

or about August 22, 2018. in the United States Court of Federal Claims as petition No. l 8-

l 269V.

          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 ful I and complete negotiated settlement of liability and

damages claimed under the National Childhood Vaccine lnju1") Act of 1986. except as otherwise

noted in paragraph 9 above. There is absolutel y 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 I lcalth and Human Services that the flu vaccine caused petitioner's alleged shoulder

injury. or any other injury or his 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

I
I
I




                                                  4
Respectfully submitted,




ATTORNEY OF RECORD FOR                     AUTHORIZED REPRESENTATIVE
PE TIONER:
    I          - - - - --




·+ .;,-......:~~~-----        ~                --~~
                                           0 THE ATTORNEY GENERAL:
                                                                  ~
                   TOALE, ESQ.
  aglio Christopher & Toale, P.A.          Deputy Director
1605 Main St. Suite 710                    Torts Branch, Civil Division
Sarasota, FL 34236                         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:                            .
                                           ~~s~
                                              ii-, ~                      cz.---
TAMARA OVERBY                              LINDA S. RENZI
Acting Director, Division of Injury        Senior Trial Counsel
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) 616-4133



Dated:




                                       5
