Sn the Auited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1691V
UNPUBLISHED
KIMBERLY DUKE, Chief Special Master Corcoran
Petitioner, Filed: February 2, 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)
Gil L. Daley, Il, Law Office of Gil. L. Daley, Il, P.C., Fort Worth, TX, for petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION’
On November 1, 2018, Kimberly Duke filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, ef seg.” (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury caused-in-fact by the
influenza vaccine she received on September 23, 2017. Petition at 1, 1; Stipulation, filed
at Feb. 2, 2021, J] 1-2, 4. “Respondent denies that [P]etitioner sustained a SIRVA Table
injury; denies that the flu vaccine caused [P]etitioner’s alleged shoulder injury, or any
other injury; and denies that her current condition is a sequelae of a vaccine-related
injury.” Stipulation at J 6.
Nevertheless, on February 2, 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, | am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 $45,000.00 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.?
IT 1S 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
)
KIMBERLY DUKE, )
)
)
Petitioner, )
) No. 18-1691V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Kimberly Duke (“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 an injury allegedly related to petitioner’s receipt
of the mfluenza (“Flu”) vaccme, which is contained in the Vaccine Injury Table (the “Table”), 42
C.F.R. § 100.3(a).
2. Petitioner received the flu vaccine on September 23, 2017.
3. The vaccme was administered in the United States.
4. Petitioner alleges that as a result of receiving the flu vaccine, she suffered a Shoulder
Injury Related to Vaccine Administration (“SIRVA”) within the table timeframe, or in the
alternative, that the alleged shoulder injury was caused by the vaccine. She further alleges that
she suffered the residual effects of her alleged injury for more than six months.
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5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages as a result of his alleged condition.
6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the flu
vaccine caused petitioner’s alleged shoulder injury, or any other injury; and denies that her
current condition is a sequelae of a vaccine-related 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 $45,000.00, in the form of a check payable to petitioner, which
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 attomey 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
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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 of this Stipulation, and any amount awarded
pursuant to paragraph 9, 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 paragraph 8, and any amount awarded
pursuant to paragraph 9, petitioner, in her individual capacity, and on behalf of her heirs,
executors, administrators, successors, or assigns, does forever nrevocably 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 vaccine
administered on September 23, 2017, as alleged in a Petition filed on November 1, 2018, in the
United States Court of Federal Claims as petition No. 18-1691V.
14. If petitioner should die prior to entry of judgment, this agreement shall be voidable
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upon proper notice of the Court on behalf of either or both of the parties.
15. Ifthe special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the United States 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 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 shoulder
injury, or any other injury.
18. All rights and obligations of petitioner shall apply equally to petitioner’s heirs,
executors, admmistrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully submitted,
PETITIONER:
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KIMBERLY DUKE
ATTORNEY OF RECORD FOR
PETIJFIONER:
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GI L. DALEY, II !
The Law Office of Gil L. Daley, II, P.C.
201 Main Street, Suite 600
Fort Worth, TX 76102
817-763-9553
817-763-5891
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
CALF Dale Weehlsr, PN-Se, fr
TAMARA OVERBY, M.D.
Acting Director, Division of
Injury Compensation Programs
Healthcare Systems Bureau
U.S. Department of Health
and Human Services
5600 Fishers Lane
Parklawn Buildmg, Mail Stop 08-N146B
Rockville, MD 20857
Dated: 02/ 02/202 |
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY 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:
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RONALDA E. KOSH
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ronalda.kosh@usdoj. gov
(202) 616-4476
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