In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-584V
Filed: August 25, 2021
UNPUBLISHED
ROBERT O’LEARY, M.D.,
Petitioner,
v. Joint Stipulation on Damages;
Influenza (“Flu”) Vaccine; Shoulder
SECRETARY OF HEALTH AND Injury Related to Vaccine
HUMAN SERVICES, Administration (SIRVA)
Respondent.
Amy Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Naseem Kourosh, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
On April 25, 2018, 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 alleges that he suffered left shoulder injuries as a result of his October
7, 2016 influenza vaccine. Petition at 1; Stipulation, filed August 25, 2021, at ¶¶ 1,4.
Petitioner further alleges that he has experienced residual effects of his alleged injury
for longer than six months and has never received compensation in the form of an
award or settlement for his vaccine-related injury. Petition at 3. The parties stipulate
that: “On June 24, 2021, the Special Master issued a Ruling on Entitlement, finding
petitioner entitled to compensation for a left-sided shoulder injury related to vaccine
administration (SIRVA). Respondent continues to maintain his contrary position, but will
not seek review of the Special Master’s determination of entitlement upon its
memorialization as a reviewable decision.” Stipulation at ¶ 4.
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted 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).
Thus, on August 25, 2021, the parties filed the attached joint stipulation, stating
that a decision should be entered awarding compensation. I find the stipulation
reasonable and adopt 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, I award the following
compensation:
A lump sum of $50,000 in the form of a check payable to petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of
damages that would be available under § 15(a). Id.
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/Daniel T. Horner
Daniel T. Horner
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
ROBERT O'LEARY, M.D.,
Petitioner,
v.
No. 18-584V (ECF)
SECRETARY OF HEALTH Special Master Horner
AND HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Robert O'Leary, petitioner, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (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 October 7, 2016.
3. The vaccination was administered within the United States.
4. On June 24, 2021, the Special Master issued a Ruling on Entitlement, finding
petitioner entitled to compensation for a left-sided shoulder injury related to vaccine
administration (SIRVA). Respondent continues to maintain his contrary position, but will not
seek review of the Special Master's determination of entitlement upon its memorialization as a
reviewable decision.
5. The parties now agree that a decision should be entered awarding the compensation
described in paragraph 6 of this Stipulation.
6. 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 $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).
7. 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)(l), 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.
8. 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-l 5(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.
9. Payment made pursuant to paragraph 6 of this Stipulation and any amounts awarded
pursuant to paragraph 7 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-
15(i), subject to the availability of sufficient statutory funds.
10. 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
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pursuant to this Stipulation will be used solely for petitioner's benefit 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).
11. In return for the payments described in paragraphs 6 and 7, 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 October 7, 2016, as
alleged by petitioner in a petition for vaccine compensation filed on or about April 25, 2018, in
the United States Court of Federal Claims as petition No. 18-584V.
12. 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.
13. 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.
14. 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
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as otherwise noted in paragraph 7 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.
15. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Service that the flu vaccine caused petitioner's alleged injury or
any other injury or his current disabilities, or that petitioner suffered an injury contained in the
Vaccine Injury Table.
16. 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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Respectfully submitted,
PETITIONER:
ATTORNEY OF RECORD AUTHORIZED REPRESENTATIVE
FOR PETITIONER: OF THE ATTORNEY GENERAL:
t21ik
AMY SEN£RTH
Muller Brazil, LLP
-Htifu~A~&.J 11\0-_
Deputy Director
715 Twining Road Torts Branch
Suite 208 Civil Division
Dresher. PA 19025 U.S. Department of Justice
Tel: (215) 885-1655 P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPO~DENT:
AND HUMAN SERVICES:
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TAMARA OVERBY NASEEM KOUROSH
Acting Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch
Healthcare System Bureau Civil Division
Health Resources and Services U.S. Department of Justice
Administration P.O. Box 146
U.S. Depa1tment of Health Benjamin Franklin Station
and Human Services Washington, DC 20044-0146
5600 Fishers Lane, 08N 1468 Tel: (202) 305-1159
Rockville, MD 20857 Email: Naseem.kourosh@usdoj.gov
Dated: 0 ! /l-'I )'1.0'Z.. I
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