In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-077V
Filed: August 16, 2018
* * * * * * * * * * * * *
JOSEPH PAULOWSKY, * UNPUBLISHED
*
Petitioner, * Decision on Joint Stipulation;
* Shoulder Injury Related to
v. * Vaccine Injury (“SIRVA”);
* Influenza (“Flu”) Vaccine
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Mark Sadaka Esq., Mark T. Sadaka, LLC, Englewood, NJ, for petitioner.
Lara Englund, Esq., US Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Roth, Special Master:
On January 27, 2014, Joseph Paulowsky [“Mr. Paulowsky or “petitioner”] filed a petition
for compensation under the National Vaccine Injury Compensation Program.2 Petitioner initially
alleged that the influenza (“flu”) vaccine he received on November 1, 2011, caused him to develop
a systemic inflammatory response leading to a heart attack and decreased cardiac strength and
function. Stipulation, filed August 16, 2018, at ¶¶ 1-4. On February 24, 2017, petitioner filed an
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Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request 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). Otherwise, the whole Decision will be available to the public. Id.
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).
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amended petition alleging that the flu vaccine also caused a shoulder injury. Id. at ¶ 4. Respondent
denies that the aforementioned immunization caused petitioner’s injuries. Stipulation at ¶ 6.
Nevertheless, the parties have agreed to settle the case. On August 16, 2018, the parties
filed a joint stipulation agreeing to settle this case and describing the settlement terms.
Respondent agrees to issue the following payment:
A lump sum of $50,000.00 in the form of a check payable to petitioner, Joseph
Paulowsky. This amount represents compensation for all damages that would be
available under § 300aa-15(a).
I adopt the parties’ stipulation attached hereto, and award compensation in the amount and
on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance
with this decision.3
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
JOSEPH PAULOWSKY, )
)
Petitioner, )
)
v. ) No. 14-77V
) Special Master Mindy Michaels Roth
SECRETARY OF )
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner Joseph Paulowsky (“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 or about November 1, 2011.
3. The vaccine was administered within the United States.
4. Petitioner initially alleged that the flu vaccine caused him to develop a systemic
inflammatory response leading to a heart attack and decreased cardiac strength and function. On
February 24, 2017, petitioner filed an amended petition alleging that the flu vaccine also caused
a shoulder injury. Petitioner alleges that he experienced residual effects of these injuries 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 his condition.
6. Respondent denies that the flu vaccine is the cause of petitioner’s alleged
inflammatory response, cardiac injury, shoulder injury, or any other injury or his 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)(1), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $50,000.00, 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)(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 his 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.
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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-15(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 unreimbursable 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 his
individual capacity, and on behalf of his 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 resulted from, the flu vaccination administered on November 1, 2011, as
alleged by petitioner in a petition for vaccine compensation filed on or about January 27, 2014,
and subsequently amended on February 24, 2017, in the United States Court of Federal Claims
as petition No. 14-77V.
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.
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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 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 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
inflammatory response, cardiac injury, shoulder injury, or any other injury or his 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 STIPULATION
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