The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1427V
UNPUBLISHED
KIMBERLY MELHADO, Chief Special Master Corcoran
Petitioner, Filed: August 27, 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)
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION ON JOINT STIPULATION1
On September 18, 2019, Kimberly Melhado 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”), a defined Table injury, after receiving an influenza vaccine on
February 15, 2018. Petition at 1, ¶ 2; Stipulation, filed at August 26, 2021, ¶¶ 1-2, 4.
Petitioner further alleges she received the vaccine in the United States and that neither
she nor any other party has filed a civil action or received compensation for her injury.
Petition at ¶¶ 2, 11-12; Stipulation at ¶¶ 3, 5. “Respondent denies that [P]etitioner
suffered the onset of her alleged SIRVA within the Table timeframe; denies that the flu
vaccine caused [P]etitioner’s alleged shoulder injury or any other injury and further denies
that her current disabilities are a sequela of a vaccine-related injury.” Stipulation at ¶ 6.
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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, I agree that the identified material fits within this definition, I 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Nevertheless, on August 26, 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 my decision 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 $28,000.00 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). Id.
I 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. 3
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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
KIMBERLY MELHADO,
Petitioner, No. 19-1427V
Chief Special Master Corcoran
V. SPU
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipu1ate to the following matters:
1. Petitioner, Kimberly Mefuado, 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 influenz.a ("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 February 15, 2018.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered aShoukler Injury Related to Vaccine Administration
("SIRVA") as a consequence of the flu immunilation she received on or about February 15, 2018,
and further alleges that she suffered the residual effects of this injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on her behalf as a result of her condition.
Page I of 5
6. Respondent denies that petitioner suffered the onset of her alleged SIRVA within the
Table timeframe; denies that the flu vaccine caused petitioner's alleged shoulder injury or any
other injury and further denies that her current disabilities are a sequela of a vaccine-related injury.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the
JSsues between them shall be settled and that a decision should be entered awarding the
compensation descnbed 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 fded an election to receive compensation
pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue the
following vaccine compensation payment:
A lump sum of $28,000.00, 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)(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.
10. Petitioner and her 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
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.
Page 2 of 5
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 unreimbursed medical 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 her individua I
capacity, and on behalf of her 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 February 15, 2018, as
alleged by petitioner in a petition for vaccine compensation fded on or about September 18, 2019
in the United States Court of Federal Claims as petition No. 19-1427V.
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.
Page 3 of 5
15. If the special master fails to issue a decision in complete conformity with the terms of
this Stipulation or if the United States Court of Federal C1aims 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 descnbed 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 iajury 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 Hwnan Services that the flu vaccine caused petitioner's alleged shoulder
injury or any other injury or any of her 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
Page4 of5
Respectfully submitted,
PETITIONER:
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A'ITORNEYOFRECORDFOR AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
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HEATIIER L. PEARLMAN ..
MULLER BRAZIL LLP Deputy Director
715 Twining Road Torts Branch
Suite 107 Civil DivBion
Dresher, PA 19025 -u. $;-Department of Justice
(215) 885-1655 P.0.Box146 .
Benjamin Franklin Station
Washington, D.C. 20044-0146
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AUTHORIZED REPRESENTATIVE OF ·ATIORNEY OFRECORD·FOR: , ', r
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THE SECRETARY OF HEALTH AND RESPONDENT: . '
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