In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1109V
************************* * Chief Special Master Corcoran KATHERINE KESTERSON, * * Petitioner, * Filed: March 24, 2020 * v. * * Decision by Stipulation; Damages; SECRETARY OF HEALTH * Guillain-Barré Syndrome; Transverse AND HUMAN SERVICES, * Myelitis; Influenza Vaccine. * Respondent. * * *************************
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Sarah Christina Duncan, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
DECISION AWARDING DAMAGES 1
On September 6, 2016, Katherine Kesterson filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”). 2 Petitioner alleges that she suffered from Guillain-Barré Syndrome (“GBS”) and/or Transverse Myelitis (“TM”) as a result of her October 29, 2014 receipt of the influenza (“flu”) vaccine. Moreover, Petitioner alleges that she experienced residual effects of this injury for more than six months.
1 Because this Decision contains a reasoned explanation for my actions in this case, I will 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 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). Respondent denies that the flu vaccine caused Petitioner to suffer GBS, TM, or any other neurodemyelinating disorder. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed on March 24, 2020) that the issues before them could be settled, and that a decision should be entered awarding Petitioner compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.
The stipulation awards:
• A lump sum of $450,000.00 in the form of a check payable to Petitioner.
Stipulation ¶ 8. This amount represents compensation for all damages that would be available under Section 15(a) of the Act.
I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court is directed to enter judgment herewith. 3
IT IS SO ORDERED.
/s/ Brian H. Corcoran Brian H. Corcoran Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review.
2 Case 1:16-w-01109-UNJ Document 77 Filed 03/24/20 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) KA THERINE KESTERSON, ) ) Petitioner, ) ) No. 16-l 109V V. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ________________ )
STIPULATION
The parties hereby stipulate to the following matters:
I. Katherine Kesterson, 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 injuries allegedly related to petitioner's receipt
of an influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the
"Table"), 42 C.F.R. § 100.3(a).
2. Petitioner received the flu vaccine on October 29, 2014.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered a neurodemyelinating disorder, including Guillain-
Barre syndrome ("GBS") and/or transverse myelitis ("TM"), as a result of receiving the flu
vaccination, and further alleges that she experienced the residual effects of her 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. Case 1:16-w-01109-UNJ Document 77 Filed 03/24/20 Page 2 of 5
6. Respondent denies that petitioner's alleged neurodemyelinating disorder, including
GBS and/or TM, were caused by the flu vaccine. Respondent further denies that the flu vaccine
caused petitioner any other injury or her current condition.
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 $450,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages, including pain and suffering, lost earnings, and past unreimbursable expenses, 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 compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
under 42 U .S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be
expected to be made under any 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 by entities that provide health services on a pre-paid basis.
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1109V
************************* * Chief Special Master Corcoran KATHERINE KESTERSON, * * Petitioner, * Filed: March 24, 2020 * v. * * Decision by Stipulation; Damages; SECRETARY OF HEALTH * Guillain-Barré Syndrome; Transverse AND HUMAN SERVICES, * Myelitis; Influenza Vaccine. * Respondent. * * *************************
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Sarah Christina Duncan, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
DECISION AWARDING DAMAGES 1
On September 6, 2016, Katherine Kesterson filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”). 2 Petitioner alleges that she suffered from Guillain-Barré Syndrome (“GBS”) and/or Transverse Myelitis (“TM”) as a result of her October 29, 2014 receipt of the influenza (“flu”) vaccine. Moreover, Petitioner alleges that she experienced residual effects of this injury for more than six months.
1 Because this Decision contains a reasoned explanation for my actions in this case, I will 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 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). Respondent denies that the flu vaccine caused Petitioner to suffer GBS, TM, or any other neurodemyelinating disorder. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed on March 24, 2020) that the issues before them could be settled, and that a decision should be entered awarding Petitioner compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.
The stipulation awards:
• A lump sum of $450,000.00 in the form of a check payable to Petitioner.
Stipulation ¶ 8. This amount represents compensation for all damages that would be available under Section 15(a) of the Act.
I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court is directed to enter judgment herewith. 3
IT IS SO ORDERED.
/s/ Brian H. Corcoran Brian H. Corcoran Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review.
2 Case 1:16-w-01109-UNJ Document 77 Filed 03/24/20 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) KA THERINE KESTERSON, ) ) Petitioner, ) ) No. 16-l 109V V. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ________________ )
STIPULATION
The parties hereby stipulate to the following matters:
I. Katherine Kesterson, 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 injuries allegedly related to petitioner's receipt
of an influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the
"Table"), 42 C.F.R. § 100.3(a).
2. Petitioner received the flu vaccine on October 29, 2014.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered a neurodemyelinating disorder, including Guillain-
Barre syndrome ("GBS") and/or transverse myelitis ("TM"), as a result of receiving the flu
vaccination, and further alleges that she experienced the residual effects of her 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. Case 1:16-w-01109-UNJ Document 77 Filed 03/24/20 Page 2 of 5
6. Respondent denies that petitioner's alleged neurodemyelinating disorder, including
GBS and/or TM, were caused by the flu vaccine. Respondent further denies that the flu vaccine
caused petitioner any other injury or her current condition.
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 $450,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages, including pain and suffering, lost earnings, and past unreimbursable expenses, 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 compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
under 42 U .S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be
expected to be made under any 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 by entities that provide health services on a pre-paid basis.
2 Case 1:16-w-01109-UNJ Document 77 Filed 03/24/20 Page 3 of 5
11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded
pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-
l 5(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, 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- l 5(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, 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 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 vaccination administered on October 29, 2014, as
alleged by petitioner in a petition for vaccine compensation filed on or about September 6, 2016,
in the United States Court of Federal Claims as petition No. 16-1109V.
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.
3 Case 1:16-w -01109-UNJ Document 77 Filed 03/24/20 Page 4 of 5
15. If the special master fails to issue a decision in complete conformity with the terms
of this 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.
16. This Stipulation expresses a full and complete negotiated settlement of liability and
damages claimed under the National Childhood Vaccine Injury Act of I 986, 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 to 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 to develop a
neurodemyelinating disorder, including OBS and/or TM, or any other injury.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION I I I I I I I I I I I
4 Respectful~r11iaidyv-01109-UNJ Document 77 Filed 03/24/20 Page 5 of 5
PETITIONER:
-fe/v·-ek.---- KATifuRINE KESTERSON
ATTORNEY OF RECORD F'OR AUTHORIZED RKPRl4:SENTATIVE PETITIONER: OF THE ATTORNEY GENF~RAL:
~~ cK~ {),u.o1u1a_ ¥ d b• ~ ~t,(_ f{tJU_~A (c){z) t._,~---- . __ _____ . RONALD C. HOMER) CA . E E. REEVES Conway Horner P. C. Deputy Di"rector 16 Shawmut Street Torts Branch Boston, MA 02116 Civil Division Tel: (617) 695-1990 U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTO.Ri"lEY OF RECORD l<'OR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES:
_ Wwtd_~~~f~---- _____ TAMARA OVERBY Acting Director, Division of Injury Compensation ·Trial Attorney Programs (DICP) Torts Branch Healthcare Systems Bureau Civil Division Ucalth Resources and Services Administration U.S. Department of Justice U.S. Department of Health and Human Services P.O. Box 146 5600 Fishers Lane Benjamin Franklin Station Parklawn Building, Mail Stop 08N 146B Washington, DC 20044-0146 Rockville, MD 20857 Tel: (202) 514-9729
Dated: . :!;:/v-l{'"2..-U___ .... _____