In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS

******************* * *
PENNY RACKLEY,           *
                         *                           No. 14-573
             Petitioner, *                           Special Master Christian J. Moran
                         *
v.                       *                           Filed: December 30, 2014
                         *
SECRETARY OF HEALTH      *
AND HUMAN SERVICES,      *                           Stipulation; influenza (flu) vaccine;
                         *                           shoulder injury; attorneys’ fees
             Respondent. *                           and costs.
******************* * *
Maximillian J. Muller, Muller Brazil, LLP, Philadelphia, PA, for Petitioner;
Traci R. Patton, U.S. Department of Justice, Washington, D.C., for Respondent.

                              UNPUBLISHED DECISION1

       On December 29, 2014, the respondent filed a joint stipulation concerning
the petition for compensation filed by Penny Rackley. In her petition, Ms. Rackley
alleges that the influenza (“flu”) vaccine and the pneumococcal vaccine, which are
contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and
which she received on October 25, 2013, caused her to suffer a shoulder injury.
Petitioner further alleges that she experienced residual effects of this injury for
more than six months. 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.

      Respondent denies that the flu immunization is the cause of petitioner's
alleged shoulder injury or any other injury or condition.



       1
         The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
      Nevertheless, the parties agree to the joint stipulation, attached hereto as
Appendix A. The undersigned finds said stipulation reasonable and adopts it as the
decision of the Court in awarding damages and attorneys’ fees and costs, on the
terms set forth therein.

       Compensation awarded in that stipulation includes:

       A. A lump sum payment of $115,000.00 in the form of a check payable
          to Penny Rackley, petitioner. This amount represents compensation
          for all damages that would be available under 42 U.S.C. §300aa-
          15(a); and

       B. A lump sum of $15,714.97, in the form of a check payable jointly to
          petitioner and petitioner’s attorney, Maximillian Muller, for
          attorneys’ fees and costs available under 42 U.S.C. §300aa-15(e), and,
          in compliance with General Order #9, no out-of-pocket expenses
          were incurred by petitioner in proceeding on the petition.

       In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 14-573V according to this decision
and the attached stipulation.2

     Any questions may be directed to my law clerk, Christina Gervasi, at (202)
357-6521.

       IT IS SO ORDERED.

                                                     s/Christian J. Moran
                                                     Christian J. Moran
                                                     Special Master




       2
          Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.

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     Case 1:14-vv-00573-UNJ Document 12 Filed 12/29/14 Page 2 of 5




        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-2 l (a)(l ), the Secretary of Health and Human Services will issue

the follow ing vaccine compensation payments:

                a.     A lump sum of $115,000.00 in the fonn of a check payable to petitioner.
                       This amount represents compensation for all damages that would be
                       available under 42 U.S.C. § 300aa-1 5(a); and

                b.     A lump sum of$15,714.97, in the fonn of a check payable jointly to
                       petitioner and petitioner's attorney, Maximillian Muller, fo1· attorney's
                       fees and costs available under42 U.S.C. § 300aa-15(e). In compliance
                       with General Order #9, petitioner represents that he incurred no out-of-
                       pocket litigation expenses in proceeding on the petition.

        9. Petitioner and her attorney represent that compensation to be provided pursuant to this

Stipulation is not for any items or services fo1· which the Program is not primarily liable under 42

U.S.C. § 300na-15(g), to the extent that payment has been made or can reasonably be expected to

be made under any State compensation prog1·ams, 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.

        J0. Payments made pursuant to paragraph 8 of this Stipulation will be made in

accordance with 42 U.S.C. § 300aa-15(i), subject to the avaiJability of sufficient statutory funds.

        11. The parties and their attorneys further agree and stipulate thut, excepl for any awa1·d

for attorneys' fees, litigation costs, and past unreimbursable expenses, the money provided

pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a


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     Case 1:14-vv-00573-UNJ Document 12 Filed 12/29/14 Page 3 of 5




strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C,

§ 300aa- l 5(g) and (h).

         12. In return for the payments described in paragraph 8, 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 United States and the

Secretary of Health and Human Services from any and al1actions, 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 h(lve 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 kOown or

unknown personal injuries to or death of petitioner resulting from, or alleged to have resulted

from, the flu vaccination administered on October 25, 2013, as alleged by petitioner in a petition

for vaccine compensation filed on or about July 7, 2014, in tbe Unjted States Court of federal

Claims as petition No. 14-573V.

        13. If pelitionel' should die prior to entry ofjudgment, thls agreement shall be voidable

upon proper no lice to the Court on behalf of either or both of the parties.

        14. If the special master fa ils to issue a decision in complete conformity with the terms

of tills 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.

        15.   ~hi s   Stipulation expresses a full and complete negotiated settlement of liability and

damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended. There

is absolutely no agreement on the part of the parties hereto to make any payment or to do any act


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    Case 1:14-vv-00573-UNJ Document 12 Filed 12/29/14 Page 4 of 5




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 compl'Omise of the parties'

respective positions as to liability ru1d/or amount of damages, and fu1ther, tbat 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.

        l 6. 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

inju1·y, or any other injury or condition.

        17. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

heirs, executers, administrators, successors, and/or assigns.

                                      END OF STIPULATION




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     Case 1:14-vv-00573-UNJ Document 12 Filed 12/29/14 Page 5 of 5




Respectfully submitted.

PF.Tl TIONER:




                                                       AUTHORIZED UEJ>IU~SRNTATIVF.
                                                       OF Tllli_ATTOl NEY G~~Rl)AL: J\   "'

                                                        \}'-, ~                 ~'d-1



                                                       Dcpuly Director
2 0 I Pennsylvnnia Avc.                                Torts Branch
Suite IC-44                                            Civil Division
Philndclphio, PA 191 30                                U.S. Department of Justice
t21 S) 259-8662                                        P.O. Box 146
                                                       Benjamin Franklin Station
                                                       Washington, D.C. 20044-0146

AUTHORIZED REPIH'.SRNTATIVR                            AT'l'ORNl!:Y OF RF:CORD FOR
OF THE SECRl<:TARY Oil HEALTH                          UF.SPONDENT:
AND HUMAN SERVICES:
                                                       rt7va ~i e ~~
      I~
A. MEtfSSA IIOUSTON, M.D., M.P.11., FAAP
                                                         Lu £ du 1 Rl1<.d~
                                                       TRACI R. PATTON -
                                                                       0
Director, Division of Jnjury Compensation              Senior Trial Altorney
        Programs (D ICP)                               'foris Ornnch
Hcnllhcarc Systems Ourcau ·                            Civil Division
U.S. D~pur11111.mt of HcRlth and llumnn Services       U.S. Dcpartmcnl ol'Juslicc
5600 rishcrs I ,anc                                    P.O. 13ox 146
Pnrklnwn Bui lding, Mnil Stop 11 C-26                  Ocnjnmin Frunkli n Stntion
Rockville, MD 20857                                    Wnshington, DC 200'14-0146
                                                       Tel: (202) 353-1589


DATE:    Id, { J.j IJ.01   ¥


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