In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-468V
Filed: January 15, 2016
UNPUBLISHED
****************************
ELIZABETH J. ZDROIK, *
*
Petitioner, * Joint Stipulation on Damages;
* Influenza (“Flu”) Vaccine;
* Left Shoulder Injury;
SECRETARY OF HEALTH * Special Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
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Ramon Rodriquez, III, Rawls McNelis and Mitchell, P.C., Richmond, VA, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On May 8, 2015, 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 as a result of her
October 16, 2012 influenza [“flu”] vaccination. Petition at 1; Stipulation, filed 1/13/2016,
¶¶ 2, 4. Petitioner further alleges that she has experienced the symptoms of her injury
for more than six months, and has received no prior award or settlement of a civil action
for damages as a result of her injury. Petition, ¶¶ 10-11; Stipulation, ¶¶ 4-5.
“Respondent denies that the flu vaccine either caused or significantly aggravated
petitioner’s alleged injury or any other injuries, and denies that petitioner’s current
disabilities are the result of a vaccine-related injury.” Stipulation, ¶ 6.
Nevertheless, on January 13, 2016, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. The undersigned
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended
at 44 U.S.C. § 3501 note (2006)). 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.
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).
finds the stipulation reasonable and adopts it as the decision of the Court in awarding
damages, on the terms set forth therein.
The parties stipulated that petitioner shall receive the following compensation:
A lump sum of $140,000.00 in the form of a check payable to petitioner.
Stipulation, ¶ 8. This amount represents compensation for all items of damages
that would be available under 42 U.S.C. § 300aa-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
Case 1:15-vv-00468-UNJ Document 29 Filed 01/13/16 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
ELI ZA BETH J. Z DROIK, )
)
Petitioner, ) No. I 5-468V ECF
)
v. ) Chi ef Special Master Dorsey
)
SECRETARY OF HEALTH )
AND HUMAN SERV ICES, )
)
Respondent. )
~~~~~~~~~-)
STIPULATION
The parties hereby stipu late to the fo llowing matters:
I. Petitioner, Elizabeth J. Zdroik, filed a petition for vaccine compensation under the
National Vacc ine Injury Compensati on Program, 42 U.S.C. §§ 300aa-I 0 to 34 (the "Vaccine
Program"). The petition seeks compensation for injuries alleged ly related to petitioner's receipt
of the influenza ("flu") vacc ine, which is contai ned in the Vaccine Injury Table (the "Table"), 42
C.F. R. § I00.3(a).
2. On October I6, 20 12, petitioner received the flu vaccine in the left deltoid.
3. T he flu vaccine was administered within the United States.
4. Petitioner alleges that, as a result of receiving the flu vacc ine, she suffered from a left
shoulder injury, and that she experienced symptoms of the 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 alleged injuries.
6. Respondent denies that the flu vaccine either caused or significantly aggravated
Case 1:15-vv-00468-UNJ Document 29 Filed 01/13/16 Page 2 of 5
petitioner's al leged injury or any other injuries, and den ies that petitioner's current disab ilities
are the result of a vaccine-related injury.
7. Maintaining their above-stated pos itions, the parties nevertheless now agree that the
issues between them shal l 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 deci sion consistent
with the term s of this Stipulation, and after petit ioner has tiled 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 fo llowing vaccine compensation payment:
A lump sum of$ 140,000.00, in the form ofa check payable to petitioner. Th is
amount represents compensation for all damages that would be avai lable 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 petiti oner has tiled both a proper and timely election to receive compensation pursuant to
42 U.S.C. § 300aa-2l(a)( 1), and an application , the parties will submit to further proceedings
before the special master to award reasonab le attorneys' fees and costs incurred in proceeding
upon this petition.
I0. Petitioner and her attorney represent that compensation to be provided pursuant to
this Stipulation is not for any items or serv ices for wh ich the Program is not primarily liable
under 42 U.S.C. § 300aa-l 5(g), to the extent that payment has been made or can reasonab ly be
expected to be made under any State compensation program s, 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.
I I. Payment made pursuant to paragraph 8 of this Stipulation, and any amou nts
2
Case 1:15-vv-00468-UNJ Document 29 Filed 01/13/16 Page 3 of 5
awarded pursuant to paragraph 9 of thi s Stipulation, will be made in accordance with 42 U.S.C.
§ 300aa- 15( i), subject to the avai labi Iity of sufficient statutory fund s.
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 Stipul ation wi ll 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- 15(g) and (h) .
13. In return for the payments described in paragraphs 8 and 9, petitioner, in her
individual capacity and on behalfof her heirs, executors, administrators, successors or assigns,
does forever irrevocably and unconditionally release, acq uit and discharge the United States and
the Secretary o f Health and Human Services from any and alI actions, 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 cou ld be timely brought in
the Court of Federa l Claims, und er the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa-I 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 vaccine admin istered on October 16, 201 2, as al leged by
petitioner in a petition for vaccine compensation filed on or about May 8, 20 I 5, in the United
States Court of Federal C laims as petition No. I 5-468V.
14. If petitioner should die prior to entry of judgment, this agreement shall be vo idab le
upon proper notice to the Court on behalfof either or both of the parties.
I 5. If the special master fail s to issue a decision in complete conformity with the terms
of this Stipulation or if the Court of Federal Claims fa ils to enter j udgment in conformity with a
decision that is in complete conformity with the terms of th is Stipulati on, then the parties'
3
Case 1:15-vv-00468-UNJ Document 29 Filed 01/13/16 Page 4 of 5
settlement and this Stipulation shall be voidable at the sole discreti on of either party.
16. Thi s 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 parti es further agree and understand that the award described in thi s
stipulation may reflect a compromise of the parties' respective positions as to liab il ity and/or
amount of damages, and further, that a change in the nature of the injury or conditi on or in the
items of compensation sought, is not grounds to modify or rev ise this agreement.
17. Th is Stipul ation shall not be construed as an adm ission by the United States or the
Secretary of Health and Human Services that the flu vaccine rece ived by petiti oner either caused or
significantly aggravated petitioner's alleged injury, or any other injury or disab ility.
18. All rights and obli gations of petitioner hereunder shall apply equal ly to petiti oner's
heirs, executors, adm ini strators, successors, and/or ass igns.
END OF STIPULATION
4
Case 1:15-vv-00468-UNJ Document 29 Filed 01/13/16 Page 5 of 5
Respectfully submitted,
PETITIONER:
ELIZABETH J. Z
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
Hl,M.D.
U11
CEN £~ JATANOSKI
...,...,~~~ is 1tchell Deputy Director
211 Rocketts Way, Suite JOO Torts Branch
Richmond, VA 23231 Civil Division
(804) 782-0608 U.S. Department of Justice
P.O. Box. 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIV E ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERV CES:
/ ...
~--;;;_
Al OUSTON, M.D., M.P.H, FAAP DARRYLR. WISHARD
Director, Division of lnjury Senior Trial Attorney
Compensntion Programs (DICP) Torts Branch
Healthcare Systems Bw·eau Civil Division
U.S. Department of Health and U.S. Department of Justice
Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop l IC-26 Washington, DC 20044-0146
Rockville, MD 20857 (202) 616-4357
Dated: , ~_._{_1-"'- - -
_ r_(_
5
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Zdroik v. Secretary of Health and Human Services
Combined Opinion