In the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1744V
(not to be published)
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ELAINE WARD PRUETT, :
* Filed: March 4, 2021
Petitioner, *
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V. * Decision by Stipulation; Damages;
* Influenza (“flu”) Vaccine; Shoulder Injury
SECRETARY OF HEALTH AND : Related to Vaccine Administration
HUMAN SERVICES, » (SIRVA”).
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Respondent. *
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Howard Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for Petitioner
Voris Johnson, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON JOINT STIPULATION!
On November 8, 2018, Elaine Pruett (“Petitioner”) filed a petition, seeking compensation
under the National Vaccine Injury Compensation Program (“the Vaccine Program”).” Pet., ECF
No. 1. Petitioner alleges she suffered from a left Shoulder Injury Related to Vaccine
Administration (“SIRVA”) as a result of the influenza vaccination she received on November 13,
2015. See Stipulation { 2, 4, dated March 4, 2021 (ECF No. 44); see also Petition.
Respondent denies “that petitioner sustained a Table SIRVA within the Table timeframe,
' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the Decision will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), 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 Decision in its present form will be available. Jd.
* The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
and denies that the flu vaccine in fact caused her alleged shoulder injury and residual effects, or
any other injury.” See Stipulation { 6. Nonetheless, both parties, while maintaining their above-
stated positions, agreed in a stipulation filed March 4, 2021 that the issues before them can be
settled and that a decision should be entered awarding Petitioner compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth
therein.
The stipulation awards:
a lump sum of $30,000.00 in the form of a check payable to petitioner.
Stipulation { 8. This award represents compensation for all damages that would be available under
42 U.S.C. § 300aa-15(a).
I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
of the Court is directed to enter judgment herewith.?
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice
renouncing their right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
ELAINE WARD PRUETT, )
)
Petitioner, )
) No. 18-1744V (ECF)
V. ) Special Master Oler
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
_ )
STIPULATION
The parties hereby stipulate to the following matters:
l. Elaine Ward Pruett (‘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 the flu vaccine on November 13, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she sustained the first symptom or manifestation of onset of
a left Shoulder Injury Related to Vaccine Administration (“SIRVA”) wthin the time period set
forth in the Table. Petitioner further alleges that she experienced the residual effects of her
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 her condition.
6. Respondent denies that petitioner sustained a Table SIRVA within the Table
timeframe, and denies that the flu vaccine in fact caused her alleged 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 $30,000.00 in the form of a check payable to petitioner,
Elaine Ward Pruett, 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 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.
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, 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 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 on
November 13, 2015, as alleged by petitioner in a petition for vaccine compensation filed on or
about November 8, 2018, in the United States Court of Federal Claims as petition No. 18-1744V.
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.
16. 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 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 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.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner’s heirs, successors and/or assigns.
END OF STIPULATION
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Feb 17 2021 6:27PM HP Fax 7068615798
Respectfully submitted,
PETITIONER:
ELAINE WARD PRUETT
ATTORNEY OF RECORD FOR
PETITIONER:
LLLDIT ES)
HOWARD S. GOLD
Gold Law Firm, LLC
83 Walnut Street, Suite 150
Wellesley Hills, MA 02481
(781) 239-1000
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
CALT Dabs Wlechlar, DN Se, fee
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs (DICP)
Healthcare Systems Bureau
U.S. Department of Health
and Human Services
5600 Fishers Lane
Parklawn Building, Mail Stop 08N146B
Rockville, MD 20857
Dated: 3 foy/ecr |
page 2
AUTHORIZED
OF THE ATTO
PRESENTATIVE
Y GENERAL:
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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:
VOuUAS
Oeedh pp __
VORIS E. JOHNSON, JR.
Senior Trial
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 2 146
Tel.: (202) 616-41
Email: voris.johnson@usdoj.gov