In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0458V
Filed: October 31, 2017
UNPUBLISHED
BETTY D. BACKMAN,
Petitioner, Special Processing Unit (SPU); Joint
v. Stipulation on Damages; Influenza
(Flu) Vaccine; Shoulder Injury
SECRETARY OF HEALTH AND Related to Vaccine Administration
HUMAN SERVICES, (SIRVA)
Respondent.
William P. Ronan, III, The Ronan Law Firm, Overland Park, KS, for petitioner.
David G. Cutler, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On April 11, 2016, Betty D. Backman (“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 alleged that she suffered various
shoulder injuries as a result of receiving the influenza (“flu”) vaccine on November 12,
2014. Petition at ¶¶ 2, 19 (ECF No. 1). Petitioner further alleged she received the
influenza vaccine in the United States, suffered the residual effects of her injuries for
more than six months, and has not received a civil award or settlement for her injuries.
Petition at ¶¶ 2, 20-21. Respondent argued that compensation should be denied in this
case. See Respondent’s Rule 4(c) Report, filed Sept. 19, 2016, at 1 (ECF No. 12).
On February 28, 2017, the undersigned held a Fact Hearing in Washington, D.C.
See Ruling on Entitlement, issued Apr. 18, 2017, at 3 (ECF No. 35). At the conclusion
of the hearing, the undersigned ruled from the bench, making specific factual findings
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). 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.
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).
and determining that petitioner’s injuries met the definition of a shoulder injury related to
vaccine administration (“SIRVA”). See id. at 4. The undersigned then issued a Ruling
on Entitlement, finding petitioner entitled to compensation under the Vaccine Act. See
id. at 5.
“Respondent denies that the flu vaccine caused petitioner’s SIRVA or any other
injury or her current condition.” Stipulation, filed Oct. 31, 2017 at ¶ 6 (ECF No. 46).
Nevertheless, the parties filed the attached joint stipulation, stating that a decision
should be entered awarding compensation. Id. at ¶ 7. 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 $45,000.00 in the form of a check payable to petitioner. Id. 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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
BETTY D. BACKMAN, )
)
Petitioner, ) No. 16-458V
) Chief Special Master Dorsey
v. ) ECF
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
~~~~~~~~~~~~)
STIPULATION
The parties hereby stipulate to the following matters:
I. Betty D. Backman, 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 ("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 vaccine on November 12, 2014.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered a shoulder injury resulting from vaccine
administration ("SIRVA") as the result of her flu vaccination and that she suffered the 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. Respondent denies that the flu vaccine caused petitioner's SIRVA or any other injury
or her current condition.
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 $45,000.00 in the form of a check payable to petitioner. This amount
represents compensation for all damages thai 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)(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.
I O. Petitioner and her attorney represent that they have identified to responden! all
known sources of payment for items or services for which the Program is not primarily liable
under42 U.S.C. § 300aa-l5(g), including Slate 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-l5(i), subject
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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, 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-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, 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-1 O 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 November 12, 2014,
as alleged by petitioner in a petition for vaccine compensation filed on or about April 11, 2016,
in the United States Court of Federal Claims as petition No. 16-458V.
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.
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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 pari 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 SIRVA or any
other injury or her 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 STIPULA T!ON
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Respectfully submitted,
PETITIONER:
AUTHORIZED REPRESENTATIVE
OF TllE ATTORNEY GENERAL:
i~
CATI I RINE È. REEVES
July Director
Torts Branch
Suite 160 Civil Division
Overland Park, KS 66211 U.S. Department of' Justice
(913) 652-993 7 P.O.. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED RE E ATTORNEY OF RECORD FOR
THESECR .. R OF RESPONDENT:
HUMANS .RV
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DA VID O. CUTLER
Acting Director, Division oflnjury Trial Attorney
Compensation Programs Torts Branch
l lealthcare Systems Bureau Civil Division
Health Resources und Services Administration U.S. Deportment of Justice
U.S. Department orHeu Ith and Hunu111 Services P.O, Box 146
5600 Fishers I .anc Benjamin Frunklin Station
l'arklawn Building, Mail Stop 08N I 46B Washington, DC 20044-0146
Rockville. lvlD 20857 (202) 616-0674
Dated:~ Í{)_fljl__,_\ __.,+-1 __
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