In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 8, 2017
* * * * * * * * * * * * *
SHELLY THOMPSON, * UNPUBLISHED
*
Petitioner, * No. 16-1440V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Joint Stipulation; Influenza (“flu”);
AND HUMAN SERVICES, * Brachial neuritis; Axillary nerve
* injury
Respondent. *
*
* * * * * * * * * * * * *
Howard S. Gold, Gold Law Firm, LLC, Wellesley Hills, for petitioner.
Sam Shirazi, United States Department of Justice, Washington, DC, for respondent.
DECISION ON STIPULATION1
On November 1, 2016, Shelly Thompson (“petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to 34
(2012).2 Petitioner alleged that she suffered brachial neuritis and axillary nerve injury as a result
of an influenza vaccine administered on September 28, 2015. Petition (ECF No. 1).
On August 8, 2017, the parties filed a stipulation in which they state that a decision
should be entered awarding compensation to petitioner. Stipulation (ECF No. 24). Respondent
denies that petitioner’s alleged brachial neuritis and axillary nerve injury, or any other condition,
were caused by the flu vaccine she received. Id. at ¶ 6. Nevertheless, the parties agree to the
1
Because this decision contains a reasoned explanation for the action in this case, the undersigned intends to post it
on the website of the United States Court of Federal Claims, pursuant to the E-Government Act of 2002, see 44
U.S.C. § 3501 note (2012). The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the
decision is posted on the court’s website, each party has 14 days to file a motion requesting redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is
privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). “An objecting party must provide the
court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14
days, the decision will be posted on the court’s website. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
stipulation attached herein as Appendix A. The undersigned finds the stipulation reasonable and
adopts it as the decision of the Court in awarding damages, on the terms set forth therein.
The parties stipulate that petitioner shall receive the following in compensation:
1) A lump sum of $72,500 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).
Joint Stipulation at ¶ 8.
The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the
terms of the parties’ stipulation.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the
right to seek review.
Case 1:16-vv-01440-UNJ Document 24 Filed 08/08/17 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
SHELLY THOMPSON,
Petitioner,
v. No. 16-1440V
Special Master Thomas L. Gowen
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
I. 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 flu
vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table''), 42 C.F.R.
§ 100.3 {a).
2. Petitioner received a flu immunization on September 28, 20 I5.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she developed Brachia! Neuritis and Axillary Nerve
Injury which was caused-in-fact by her flu vaccination, and that she has experienced residual
effects of this injury 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. Resp.~>ndent denies that petitioner's alleged Brachia) Neuritis and Axillary Nerve
Case 1:16-vv-01440-UNJ Document 24 Filed 08/08/17 Page 2 of 5
Injury, or any other condition, was caused-in-fact by her flu vaccination.
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)(I), 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-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)(I), 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.
l 0. Petitioner and her 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. 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-IS(i), subject
to the availability of sufficient statutory funds.
2
Case 1:16-vv-01440-UNJ Document 24 Filed 08/08/17 Page 3 of 5
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 Stipulation
will be used solely for the benefit of petitioner as contemplated by a strict construction of 42
U.S.C. § 300aa-15(a) arid (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h).
13. Jn 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 l'esulted from, the flu vaccination administered on September 28, 2015,
as alleged by petitioner in a petition for vaccine compensation filed on or about November 1,
2016, in the United States Court of Federal Claims as petition No. J6-1440V.
14. If petitioner should die prior to entry ofjudgment, 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
Case 1:16-vv-01440-UNJ Document 24 Filed 08/08/17 Page 4 of 5
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 shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that petitioner's alleged Brachial Neuritis and Axillary
Nerve Injury, or any other condition, was caused-in-fact by her flu vaccination.
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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Case 1:16-vv-01440-UNJ Document 24 Filed 08/08/17 Page 5 of 5
Respectfully submitted,
PETITIONER:
ATTORNEY OF RECORD FOR
PETITIONER:
HOWARDS. GOLD
GOLD LAW FIRM, LLC
83 Walnut Street, Suite i 50
Wellesley Hills, MA 02481 Civil Division
(781)-239-1000 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
:?2= ~
-
SAM SHIRAZ!
Acting Director Trial Attorney
Division of Injury Compensation Programs Torts Branch
Healthcarl! Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
5600 Fishers Lane P.O. Box 146
Parklawn Building, Mail Stop 08N146B Benjamin Franklin Station
Rockville, MD 20857 Washington, DC 20044-0146
(202) 532-0222
Dated: ()l/d8 / o( ol Z
5
Thompson v. Secretary of Health and Human Services
Combined Opinion