       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* * * * * * * * * * * * * * * *                          UNPUBLISHED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.


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         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'

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        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 +-
                  --~·-···-~"-·------




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