Sn the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1066V
UNPUBLISHED
ERIC SCOTT, Chief Special Master Corcoran
Petitioner, Filed: February 9, 2021
V.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages; Influenza
HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA)
Theodore J. Hong, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON JOINT STIPULATION'
On July 23, 2019, Eric Scott filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.? (the “Vaccine
Act’). Petitioner alleges that he suffered a left shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to him on
October 13, 2018. Petition at 1, 5; Stipulation, filed at February 9, 2021, Jf] 2, 4. Petitioner
further alleges that his vaccine related injuries have lasted more than six months after the
administration of the vaccine and surgery. Petition at 5; Stipulation at 74. “Respondent
denies that petitioner sustained a Table SIRVA within the Table timeframe, and denies
that the flu vaccine in fact caused his alleged left shoulder injury and residual effects, or
any other injury.” Stipulation at J 6.
Nevertheless, on February 9, 2021, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. | find the stipulation
reasonable and adopt it as my decision awarding damages, on the terms set forth therein.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, | am
required 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). This means the decision will be available to anyone with access to the
internet. 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, | agree that the identified material fits within this definition, | 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).
Pursuant to the terms stated in the attached Stipulation, | award the following
compensation:
A lump sum of $65,000.00, in the form of a check payable to Petitioner.
Stipulation at J 8. This amount represents compensation for all items of damages
that would be available under Section 15(a). /d.
| approve 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.?
ITIS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
ERIC SCOTT, )
)
Petitioner, )
) No. 19-1066V (ECF)
v. ) Chief Special Master Corcoran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Eric Scott (“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 sustained following
petitioner’s receipt of an 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 October 13, 2018.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he sustained the first symptom or manifestation of onset of
a left Shoulder Injury Related to Vaccine Administration (“SIRVA”) within the time period set
forth in the Table, or in the alternative, that the flu vaccine caused-in-fact his left SIRVA.
Petitioner further alleges that he experienced the residual effects of his SIRVA 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 petitioner sustained a Table SIRVA within the Table
timeframe, and denies that the flu vaccine in fact caused his alleged left shoulder injury and
residual effects, or any other injury.
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 $65,000.00 in the form of a check payable to petitioner,
Eric Scott, which 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 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.
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 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 his
individual capacity, and on behalf of his heirs, executors, administrators, successors or assigns,
does forever irrevocably and unconditionally release, acquit and discharge the Secretary of
Health and Human Services and the United States of America 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 vaccine administered to
petitioner on October 13, 2018, as alleged by petitioner in a petition for vaccine compensation
filed on or about July 23, 2019, in the United States Court of Federal Claims as petition No. 19-
1066V.
14. 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.
15. This Stipulation expresses a full and complete negotiated settlement of liability
and damages claimed under the National 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 items of compensation sought is not
grounds to modify or revise this agreement.
16. This Stipulation shall not be construed as an admission by the United States of
America or the Secretary of Health and Human Services that petitioner’s alleged left shoulder
injury and residual effects, or any other injury, were caused by the flu vaccine.
17. All rights and obligations of petitioner hereunder shall apply equally to
petitioner’s heirs, successors and/or assigns.
END OF STIPULATION
Respectfully submitted,
PETITIONER:
Zot
ERIC SCOTT
ATTORNEY OF RECORD FOR
PETITIONER:
THEODORE J. G
Maglio Christopher & Toale, PA
1325 Fourth Avenue
Suite 1730
Seattle, WA 98101
(888) 952-5242
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
CAPT Dabs Wshler, DN Se, far
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs (DICP)
Healthcare Svstems Bureau
U.S. Department of Health
and Human Services
5600 Fishers Lane
Parklawn Building, Mail Stop 08N146B
Rockville, MD 20857
Dated: O2 logheez
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
de Auth Poor SUA
HEATHER L. PEARLMAN
Acting Deputy Director
Torts Branch. Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
E jennaon, /)
Vows Nechthin l Veen tu~
VORIS E. JOHNSON, JR.
Senior Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 616-4136
Voris.Johnson@usdoj.gov