         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 18-648V
                                     Filed: August 23, 2019
                                         UNPUBLISHED


    DANA OCHSNER,

                        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.


Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION 1

Dorsey, Chief Special Master:

       On May 7, 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 she suffered Shoulder Injury Related to Vaccine
Administration (“SIRVA”) as a result of her September 30, 2016 influneza (“flu”)
vaccination. Petition at 1, 3; Stipulation, filed August 22, 2019, at ¶¶ 2, 4. Petitioner
further alleges that the vaccine was administered within the United States, that she
suffered 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 on her behalf as a result of her injury.
See Petition at ¶¶ 2, 10-11; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner
sustained a SIRVA Table injury; denies that the vaccine caused petitioner’s alleged


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 Because this unpublished decision contains a reasoned explanation for the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).
shoulder injuries, or any other injury; and denies that her current condition is a sequelae
of a vaccine-related injury.” Stipulation at ¶ 6

        Nevertheless, on August 22, 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 $26,000.00 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

                                                 )
 DANA OCHSNER,
                                                 )
                                                 )
                 Petitioner,
                                                 )    No. 18-648V
 v.
                                                 )    Chief Special Master Dorsey
 SECRETARY OF HEALTH AND HUMAN )                      ECF
 SERVICES,                     ~
_______________  Respondent.                     ))

                                          STIPULATION

        The parties hereby stipulate to the following matters:

        I. Dana Ochsner, petitioner, filed a petition for vaccine compensation under the National

Vaccine Injury Compensation Program, 42 U.S.C. §300aa-t O et seq. (the "Vaccine Program").

The petition seeks compensation for injuries related to petitioner's receipt of the influenza ("flu")

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

I 00.3(a).

        2. Petitioner received the flu vaccination on September 30, 2016.

        3. The vaccine was administered within the United States.

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

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

her shoulder injury was caused by the vaccine. She further alleges that she 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 on her behalf as a result of her condition.
        6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the

vaccine caused petitioner's alleged shoulder injuries, or any other injury; and denies that her

current condition is a sequelae of a vaccine-related injury.

        7. Maintaining their abov~-stated positions, the parties neve1theless 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)(I), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

        A lump sum of $26,000.00 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 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 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-15(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. § l 396 et seq.)), or

by 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 unreimbursed 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- I 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 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 flu vaccination administered on or around September 30, 2016, as alleged by petitioner

in a petition for vaccine compensation filed on or about May 7, 2018, in the United States Coutt

of Federal Claims as petition No. 18-648V.

       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.




                                                     3
        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.

        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 sliall not be construed as an admission by the United States or the

Secretary of Health and Human Services that the flu vaccine caused petitioner's alleged right

shoulder injury, or any other injury or 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




                                                  4
Respectfully submitted,

PETITIONER:




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


                                                /~ : ~
PAULR. BRAZIL, Es                              ~              E.REEVES
MULLER BRAZIL. LLP                             Deputy Director
715 Twining Road, Suite 208                    Torts Branch
Dresher:, PA l 9025                            Civil Division
(2 t 5) 885~ 1655                              U.S. Department of Justice
(215) 885-1655 fax                             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
Acting Director, Division of Injury
                                               c~.t:7/6;
                                               Trial Attorney
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 and Human Services   P.O.Box 146
5600 Fishers Lane                              Benjamin Franklin Station
ParkJawn Building, Mail Stop 08Nl46B           Washington, DC 20044-0146
Rockville, MD 20857                            Tel: (202) 616-3644


Dated:   'o/ 'J-"). / Ii

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