In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-669V Filed: April 7, 2014
* * * * * * * * * * * * * * * * UNPUBLISHED GRAHAM ROBERTS, * * Special Master Dorsey Petitioner, * * Joint Stipulation on Damages; v. * Influenza (Flu) Vaccine; Transverse * Myelitis (TM) SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * Christina Ciampolillo, Conway, Homer & Chin-Caplan, PC, Boston, MA, for petitioner. Darryl Wishard, United States Department of Justice, Washington, DC, for respondent.
DECISION 1
On October 3, 2012, Graham Roberts (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa-1 to -34 (2006). The petition alleged that petitioner suffered a neurological demyelinating injury as a result of an influenza (“flu”) vaccination he received on October 13, 2009. Petition at 1-2. Petitioner later filed an amended petition in which he alleged that his vaccine-related injury was, in fact, transverse myelitis (TM). Amended Petition, filed April 8, 2013, at 1.
On April 7, 2014, the parties filed a stipulation, stating that a decision should be entered 1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by Vaccine Rule 18(b), each party has 14 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). 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 (2006) (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.
1 awarding compensation.
Respondent denies that the flu vaccine either caused or significantly aggravated petitioner’s TM or any other injury, and denies that petitioner experienced symptoms of TM or any other injury for more than six months. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.
The parties stipulated that petitioner shall receive the following compensation:
A lump sum of $77,176.41, 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).
Stipulation ¶ 8.
The undersigned approves the requested amount for petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation. 3
IT IS SO ORDERED.
s/ Nora Beth Dorsey Nora Beth Dorsey Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review.
2 Case 1:12-vv-00669-UNJ Document 35 Filed 04/07/14 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) GRAHAM ROBERTS, ) ) Petitioner, ) No. 12-669V ECF ) v. ) Special Master Dorsey ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ~~~~~~~~~~~~-)
STIPULATION
The parties hereby stipulate to the following matters:
I. Petitioner, Graham Roberts, 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 the flu ·vaccine on October 13, 2009.
3. The vaccine was administered within the United States.
4. Petitioner alleges that, as a result ofreceiving the flu vaccine, he suffered from
transverse myelitis ("TM"), and that he experienced symptoms of TM for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civjJ action
for damages as a result of these injuries.
6. Respondent denies that the flu vaccine either caused or significantly aggravated
I Case 1:12-vv-00669-UNJ Document 35 Filed 04/07/14 Page 2 of 5
petitioner's TM or any other injury, and denies that he experienced symptoms of TM or any other
injury for more than six months.
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-2l(a)(l), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $77,176.41, 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-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 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
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-669V Filed: April 7, 2014
* * * * * * * * * * * * * * * * UNPUBLISHED GRAHAM ROBERTS, * * Special Master Dorsey Petitioner, * * Joint Stipulation on Damages; v. * Influenza (Flu) Vaccine; Transverse * Myelitis (TM) SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * Christina Ciampolillo, Conway, Homer & Chin-Caplan, PC, Boston, MA, for petitioner. Darryl Wishard, United States Department of Justice, Washington, DC, for respondent.
DECISION 1
On October 3, 2012, Graham Roberts (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa-1 to -34 (2006). The petition alleged that petitioner suffered a neurological demyelinating injury as a result of an influenza (“flu”) vaccination he received on October 13, 2009. Petition at 1-2. Petitioner later filed an amended petition in which he alleged that his vaccine-related injury was, in fact, transverse myelitis (TM). Amended Petition, filed April 8, 2013, at 1.
On April 7, 2014, the parties filed a stipulation, stating that a decision should be entered 1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by Vaccine Rule 18(b), each party has 14 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). 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 (2006) (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.
1 awarding compensation.
Respondent denies that the flu vaccine either caused or significantly aggravated petitioner’s TM or any other injury, and denies that petitioner experienced symptoms of TM or any other injury for more than six months. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.
The parties stipulated that petitioner shall receive the following compensation:
A lump sum of $77,176.41, 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).
Stipulation ¶ 8.
The undersigned approves the requested amount for petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation. 3
IT IS SO ORDERED.
s/ Nora Beth Dorsey Nora Beth Dorsey Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review.
2 Case 1:12-vv-00669-UNJ Document 35 Filed 04/07/14 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
) GRAHAM ROBERTS, ) ) Petitioner, ) No. 12-669V ECF ) v. ) Special Master Dorsey ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ~~~~~~~~~~~~-)
STIPULATION
The parties hereby stipulate to the following matters:
I. Petitioner, Graham Roberts, 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 the flu ·vaccine on October 13, 2009.
3. The vaccine was administered within the United States.
4. Petitioner alleges that, as a result ofreceiving the flu vaccine, he suffered from
transverse myelitis ("TM"), and that he experienced symptoms of TM for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civjJ action
for damages as a result of these injuries.
6. Respondent denies that the flu vaccine either caused or significantly aggravated
I Case 1:12-vv-00669-UNJ Document 35 Filed 04/07/14 Page 2 of 5
petitioner's TM or any other injury, and denies that he experienced symptoms of TM or any other
injury for more than six months.
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-2l(a)(l), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $77,176.41, 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-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 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.
11. Payments made pursuant to paragraph 8 of this Stipulation, and any amounts
2 Case 1:12-vv-00669-UNJ Document 35 Filed 04/07/14 Page 3 of 5
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 attorneys' 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 payment described in paragraphs 8 and 9, petitioner, in his
individual capacity and on behalf of his 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, 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 vaccine administered on October 13, 2009, as alleged by
petitioner in a petition for vaccine compensation filed on or about October 3, 2012, in the United
States Court of Federal Claims as petition No. 12-669V.
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 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'
3 Case 1:12-vv-00669-UNJ Document 35 Filed 04/07/14 Page 4 of 5
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 flu vaccine either caused or significantly
aggravated petitioner's 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
4 Case 1:12-vv-00669-UNJ Document 35 Filed 04/07/14 Page 5 of 5
Rcspcclli1Jly submitted,
PETITIONER:
. !/I~ .1 ~ _M: ----~- 1 GRAHAM ROBERTS
A'l'TORNI•;Y Ole UECORD FOR AUTHORIZED REPRESENTATIVE Plc'.ITI'IONER: OF nm ATTORNEY GENJmAL:
~\lf\CL~ ' &-0~.CJ:!cmM-ht.1(\~ 83. I (_c)(t-) '(~;;{_f1 _11~:_-f RONALD c. HOMER J V~N M~Afr!stfi~ I J, Conway, Homer & Chin-C'aplun, P.C. Deputy Dil'ector 16 Shawmut Sn·eet Tol'ts Branch Boston, MA 02116 Civil Division (617) 69.5-0880 U.S. Depmitnent of Justice P.O. BoK 146 Benjamin Franklin Station Washington, DC 20044-0146
AUTHORIZED REI'RESENTATJVF, A'ITORNl"Y OF 1u;c01m FOR OF nm SECHWfARY OF ImALTH HESPONDENT: AND HUMAN SERVICES:
_(.,, VITO £ M.~.H. .!J~tt ~ .~> ()"""'"' A, M.D., Acting Dii'ector, Division -0fVacctne Injury Compensation (DV!C) Trial Attorney Torts Branch J)il.'eclor~ Counterrneasures 1njury Civil Division Compensation Pt'Of,>ram (CIC'P) U.S. Depattment of Justice Hculthcarn Systems Bureau P.O. Box 146 U.S. Department of Health Bei1iamln Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lafle (202) 616·4357 Park!awn Building, Mail Stop 11 C-26 Rockville, MD 20857
Dated: -·-· +l·"f-{ I +- --~·-···-~"-·------