The opinion
Sn the Auited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0366V
UNPUBLISHED
GERALD HINES, Chief Special Master Corcoran
Petitioner, Filed: March 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)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON JOINT STIPULATION’
On March 11, 2019, Gerald Hines 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 shoulder injury related to vaccine
administration (“SIRVA”) which meets the Table definition for SIRVA, or in the alternative
was caused-in-fact or significantly aggravated by the influenza vaccine he received on
September 15, 2017. Petition at 1, 44 1, 8; Stipulation, filed at March 2, 2021, 4 1-2, 4.
Petitioner further alleges he received the vaccine in the United States, that he suffered
the residual effects of his SIRVA for more than six months, and that neither he nor any
other party has filed a civil action or received compensation for his SIRVA. Petition at 9
1, 8-9; Stipulation at 7 3-5. “Respondent denies that [P]etitioner suffered the onset of his
alleged SIRVA within the Table timeframe; denies that the flu vaccine caused or
significantly aggravated [Petitioner's alleged shoulder injury or any other injury and
' Because this unpublished decision contains a reasoned explanation for the action in this case, | am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.
? 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).
further denies that his current disabilities are a sequela of a vaccine-related injury.”
Stipulation at q 6.
Nevertheless, on March 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.
Pursuant to the terms stated in the attached Stipulation, | award the following
compensation:
A lump sum of $40,000.00 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 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 IS 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
GERALD HINES,
Petitioner,
V. No. 19-366V
Chief Special Master Corcoran
SECRETARY OF HEALTH AND SPU
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Gerald Hines, 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 September 15, 2017.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he suffered a Shoulder Injury Related to Vaccine Administration
(“SIRVA”) as a consequence of the flu immunization he received on or about September 15, 2017,
and further alleges that he suffered the residual effects of this injury for more than six months.
Petitioner alternatively alleges that the flu vaccine significantly aggravated a pre-existing shoulder
injury.
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5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on his behalf as a result of his condition.
6. Respondent denies that petitioner suffered the onset of his alleged SIRVA within the
Table timeframe; denies that the flu vaccine caused or significantly aggravated petitioner’s alleged
shoulder injury or any other injury and further denies that his current disabilities are a sequela 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 $40,000.00, in the form of a check payable to petitioner,
representing 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
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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 prepaid basis.
11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts 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 attorney’s 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, and 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 United
States 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 or about September 15, 2017,
as alleged by petitioner in a petition for vaccine compensation filed on or about March 11, 2019
in the United States Court of Federal Claims as petition No. 19-366V.
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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. 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 or aggravated petitioner’s
alleged shoulder injury or any other injury or any of his current disabilities.
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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Respectfully submitted,
PETITIONER:
GERALD HINES ‘
ATTORNEY OF RECORD FOR
PETITIONER:
So AS
LEAH V. DURAN?” X
LAW OFFICES OF LEAH V, DURANT, PLLC
1717 K Street, NW
Suite 900
Washington, D.C. 20006
(202) 775-9200
AUTHORIZED REPRESENTATIVE OF
THE SECRETARY OF HEALTH AND
HUMAN SERVICES:
CAPT bale P, Mishler, bHSo, APRN, for
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, Stop-08N146B
Rockville, MD 20857
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AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
A echib 4 Doo tre
HEATHER L. PEARLMAN
Acting Deputy Director
Torts Branch
Civil Division
U. 8. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C, 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
Haller <e MA
2 LA
MALLORI B. OPENCHOWSKI
‘Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C, 20044-0146
Tel: (202) 305-0660
mallori.b.openchowski@usdoj.gov
Dated: Q 2/62 200
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