In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: October 1, 2024
* * * * * * * * * * * * * DONALD PERRY, * * Petitioner, * No. 18-1912V * v. * Special Master Gowen * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * Scott R. Doody, Law Offices of Scott R. Doody, Forth Worth, TX., for petitioner. Mary E. Holmes, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION ON STIPULATION1
On December 13, 2018, Donald Perry (“petitioner”) filed a petition for compensation under the National Vaccine Injury Program.2 Petition (ECF No. 1). Petitioner alleged that as a result of receiving the varicella vaccine on December 13, 2016, and tetanus-diphtheria-acellular pertussis (“Tdap”) vaccines on December 15, 2016, he suffered from shingles and transverse myelitis. Id.
On September 30, 2024, respondent filed a stipulation providing that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 100). Respondent denies that the varicella and Tdap vaccines were the cause of petitioner’s shingles and/or transverse myelitis, any other injury or petitioner’s current condition. Id. at ¶ 6. Maintaining their above- stated positions, the parties nevertheless now agree that the issues between them shall be settled
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a reasoned explanation for the action in this case, I am required to post it to a publicly available website. This decision will appear at https://www.govinfo.gov/app/collection/uscourts/national/cofc or on the Court of Federal Claims website. This means the decision will be available to anyone with access to the Internet. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website without any changes. Id.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. and that a decision should be entered awarding compensation to the petitioner according to the terms of the stipulation attached hereto as Appendix A. Id. at ¶ 7.
The stipulation provides:
1) A lump sum of $52,500.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. The Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3
IT IS SO ORDERED.
s/Thomas L. Gowen Thomas L. Gowen Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a).
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
DONALD PERRY,
Petitioner, No. 18-1912V Special Master Gowen v. ECF
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Donald Perry (“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 a varicella vaccine and a tetanus, diphtheria, and acellular pertussis (“Tdap”), which vaccines
are contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).
2. Petitioner received a varicella vaccine on December 13, 2016, and a Tdap vaccine on
December 15, 2016.
3. The vaccines were administered within the United States.
4. Petitioner alleges that petitioner suffered shingles and transverse myelitis (“TM”) that
were caused-in-fact by the varicella and Tdap vaccines. Petitioner further alleges that petitioner
suffered the residual effects of the alleged 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 petitioner’s behalf as a result of the alleged injury. 6. Respondent denies that petitioner’s alleged shingles and/or TM, or their residual
effects, were caused-in-fact by the varicella and/or Tdap vaccines; and denies that the varicella
and/or Tdap vaccines caused petitioner any other injury or petitioner’s 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)(1), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $52,500.00 in the form of a check payable to petitioner. This amount represents 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 petitioner’s 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 11.
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: October 1, 2024
* * * * * * * * * * * * * DONALD PERRY, * * Petitioner, * No. 18-1912V * v. * Special Master Gowen * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * Scott R. Doody, Law Offices of Scott R. Doody, Forth Worth, TX., for petitioner. Mary E. Holmes, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION ON STIPULATION1
On December 13, 2018, Donald Perry (“petitioner”) filed a petition for compensation under the National Vaccine Injury Program.2 Petition (ECF No. 1). Petitioner alleged that as a result of receiving the varicella vaccine on December 13, 2016, and tetanus-diphtheria-acellular pertussis (“Tdap”) vaccines on December 15, 2016, he suffered from shingles and transverse myelitis. Id.
On September 30, 2024, respondent filed a stipulation providing that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 100). Respondent denies that the varicella and Tdap vaccines were the cause of petitioner’s shingles and/or transverse myelitis, any other injury or petitioner’s current condition. Id. at ¶ 6. Maintaining their above- stated positions, the parties nevertheless now agree that the issues between them shall be settled
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a reasoned explanation for the action in this case, I am required to post it to a publicly available website. This decision will appear at https://www.govinfo.gov/app/collection/uscourts/national/cofc or on the Court of Federal Claims website. This means the decision will be available to anyone with access to the Internet. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website without any changes. Id.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. and that a decision should be entered awarding compensation to the petitioner according to the terms of the stipulation attached hereto as Appendix A. Id. at ¶ 7.
The stipulation provides:
1) A lump sum of $52,500.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. The Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3
IT IS SO ORDERED.
s/Thomas L. Gowen Thomas L. Gowen Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a).
2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
DONALD PERRY,
Petitioner, No. 18-1912V Special Master Gowen v. ECF
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Donald Perry (“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 a varicella vaccine and a tetanus, diphtheria, and acellular pertussis (“Tdap”), which vaccines
are contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).
2. Petitioner received a varicella vaccine on December 13, 2016, and a Tdap vaccine on
December 15, 2016.
3. The vaccines were administered within the United States.
4. Petitioner alleges that petitioner suffered shingles and transverse myelitis (“TM”) that
were caused-in-fact by the varicella and Tdap vaccines. Petitioner further alleges that petitioner
suffered the residual effects of the alleged 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 petitioner’s behalf as a result of the alleged injury. 6. Respondent denies that petitioner’s alleged shingles and/or TM, or their residual
effects, were caused-in-fact by the varicella and/or Tdap vaccines; and denies that the varicella
and/or Tdap vaccines caused petitioner any other injury or petitioner’s 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)(1), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $52,500.00 in the form of a check payable to petitioner. This amount represents 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 petitioner’s 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 11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 9 of this Stipulation 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 petitioner’s
individual capacity, and on behalf of petitioner’s 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 varicella and/or Tdap vaccinations
administered on December 13, 2016, and December 15, 2016, respectively, as alleged in a
petition for vaccine compensation filed on or about December 13, 2018, in the United States
Court of Federal Claims as petition No. 18-1912V.
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 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 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 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 varicella and/or Tdap vaccines caused
petitioner’s alleged injuries or any other injury or petitioner’s 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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