In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
JENNIFER TOOLE, *
* No. 15-816V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: March 30, 2017
*
SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine;
AND HUMAN SERVICES, * shoulder injury related to vaccine
* administration (“SIRVA”).
Respondent. *
******************** *
Michael A. Baseluos, Baseluos Law Firm, San Antonio, TX, for Petitioner;
Linda S. Renzi, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On March 30, 2017, the parties filed a joint stipulation concerning the
petition for compensation filed by Jennifer Toole on July 31, 2015. In her petition,
petitioner alleged that the influenza (“flu”) vaccine, which is contained in the
Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which she received
on September 9, 2014, caused her to suffer a shoulder injury related to vaccine
administration (“SIRVA”). Petitioner further alleges that she suffered the residual
effects of this injury for more than six months. 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 alleged injuries.
Respondent denies that the flu vaccine is the cause of petitioner’s alleged
SIRVA or any other injury, or her current condition.
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
Nevertheless, the parties agree to the joint stipulation, attached hereto as
Appendix A. The undersigned finds said stipulation reasonable and adopts it as the
decision of the Court in awarding damages, on the terms set forth therein.
Damages awarded in that stipulation include:
A lump sum payment of $63,000.00 in the form of a check payable to
petitioner, Jennifer Toole. This amount represents compensation for all
damages that would be available under 42 U.S.C. § 300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 15-816V according to this decision
and the attached stipulation.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
JENNIFER TOOLE, )
)
) . .
Petitioner, ) No. 15-816V
) Special Master Moran
v. )
) ECF
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
1. Jennifer Toole, 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 an
influenza ("flu") vaccine which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R.
§ 100.3(a).
2. Petitioner received a flu vaccination on September 9, 2014.
3. The vaccination was administered within the United States.
4. Petitioner alleges that the vaccine caused her to develop a shoulder injury related to
vaccine administration ("SIRVA") and 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 the flu vaccine is the cause of petitioner's alleged SIRVA or
any other injury, or her current condition.
7. Maintaining their above-stated positions, t~e parties nevertheless now agree ~hat 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 ofjudgment 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)( J), the Secretary of Health and Huma~ Services will issue
the following vaccine compensation payment:
A lump sum of $63,000.00 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-2l(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 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.
§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.
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11. Payment made pursuant to paragraph 8 of this Stipulation 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-15(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, cou ld have been brought, or could be timely
brought in the Court ofFederal 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 September 9, 2014, as
alleged by petitioner in a petition for vaccine compensation filed on or about August 3, 2015, in
the United States Court of Federal Claims as petition N£~45-816V.
...
~·
14. If petitioner should die prior to entry of jud&ment, this agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
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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 te1ms 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 lltjury Act of 1986, as amended, except
as othetwise 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 or the
Secretary of Health and Human Services that the flu vaccine caused petitioner's alleged SIRVA,
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
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Respectfully submitted,
l
PETITIONER:
~~2-
J~TOOLE
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
- PETITIONER'
~
~
~~:fS-E_NERAL---:----~- __
202 E. Park Avenue Deputy Director
San Antonio, Texas 78212 Torts Branch
Tel: (210) 787-5993 Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washin~on, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
NARAYAN NAIR, M.D.
~l ~~01-
LINDA S. RENZI '
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 11 C-26 Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-4133
Dated: Mo..v-c,~ W I. (01~
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