Judges: Nora Beth Dorsey
Filed: Nov. 18, 2019
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-0081V Filed: September 9, 2019 UNPUBLISHED YOSHIDA TATE, Petitioner, v. Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza SECRETARY OF HEALTH AND (Flu) Vaccine; Shoulder Injury HUMAN SERVICES, Related to Vaccine Administration (SIRVA) Respondent. Jerome A. Konkel, Samster, Konkel & Safran, S.C., Milwaukee, WI, for petitioner. Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, f
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-0081V Filed: September 9, 2019 UNPUBLISHED YOSHIDA TATE, Petitioner, v. Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza SECRETARY OF HEALTH AND (Flu) Vaccine; Shoulder Injury HUMAN SERVICES, Related to Vaccine Administration (SIRVA) Respondent. Jerome A. Konkel, Samster, Konkel & Safran, S.C., Milwaukee, WI, for petitioner. Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, fo..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0081V
Filed: September 9, 2019
UNPUBLISHED
YOSHIDA TATE,
Petitioner,
v. Special Processing Unit (SPU); Joint
Stipulation on Damages; Influenza
SECRETARY OF HEALTH AND (Flu) Vaccine; Shoulder Injury
HUMAN SERVICES, Related to Vaccine Administration
(SIRVA)
Respondent.
Jerome A. Konkel, Samster, Konkel & Safran, S.C., Milwaukee, WI, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On January 17, 2018, Yoshida Tate (“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 a shoulder injury related to
vaccine administration (“SIRVA”), including adhesive capsulitis, as a result of an
influenza (“flu”) vaccine he received on November 8, 2016. Petition at 1; Stipulation,
filed September 9, 2019, at ¶¶ 4, 6. Petitioner further alleges that he suffered the
residual effects of this injury for more than six months. Petition at 5; Stipulation at ¶ 4.
“Respondent denies that petitioner suffered the onset of his alleged SIRVA within the
Table timeframe; denies that the flu vaccine caused petitioner’s alleged SIRVA or any
1
The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
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).
other injury and further denies that his current disabilities are a sequela of a vaccine-
related injury.” Stipulation at ¶ 6.
Nevertheless, on September 9, 2019, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. The
undersigned finds the stipulation reasonable and adopts 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, the undersigned
awards the following compensation:
A lump sum of $60,000.00, 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 § 15(a). Id.
The undersigned approves 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/Nora Beth Dorsey
Nora Beth Dorsey
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
YOSHIDA TATE,
Petitioner, No. 18-81V
Chief Special Master Dorsey
V. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Yoshida Tate, 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 November 8, 2016.
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 November 8, 2016,
and further alleges that he 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 his behalf as a result of his condition.
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6. Respondent denies that petitioner suffered the onset of his alleged SIRVA within the
Table timeframe; denies that the flu vaccine caused petitioner's alleged SIRVA or any other injury
and further denies that his cun-ent 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)(l), the Secretary of Health and Human Services will issue the
following vaccine compensation payment:
A lump sum of $60,000.00, 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-2l(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 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
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 of5
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, 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 November 8, 2016, as
alleged by petitioner in a petition for vaccine compensation filed on or about January 17, 2018 in
the United States Court of Federal Claims as petition No. 18-81V.
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. 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 Claims fails to enter judgment in
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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 SIRVA
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
Page 4 of 5
Respectfully submitted,
PETITIONER:
-
OMEA. NKEL
SAMSTER, KONKEL & SAFRAN, S.C. Deputy Director
-
1110 N. Old World 3rd St. Torts Branch
Suite 405 Civil Division
Milwaukee, WI 53203 U.S. Department of Justice
(414) 224-0400 P. 0. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH AND RESPONDENT:
HUMAN SERVICES:
TAMARA OVERBY
Acting Director, Division of Trial Attorney
Injury Compensation Programs (DICP) Torts Branch, Civil Division
Healthcare Systems Bureau U.S. Department of Justice
U.S. Department of Health P.O. Box 146
and Human Services Benjamin Franklin Station
5600 Fishers Lane Washington, D.C. 20044-0146
Parklawn Building, Stop-08N 146B Tel: (202) 3.05-0660
Rockville, MD 20857
Dated: _r__,____//~/
I
/-'---J
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