         In the United States Court of Federal Claims
                            OFFICE OF SPECIAL MASTERS
                                          No. 11-495V
                                     Filed: August 15, 2013

*************************************
MALORY K. ROLLINS, a minor,                 *         NOT TO BE PUBLISHED
by and through her natural parent           *
and guardian, KRISTY ROLLINS,               *
                                            *
              Petitioner,                   *         Special Master Zane
                                            *
        v.                                  *         Stipulation; influenza (flu) vaccine;
                                            *         opsoclonus-myoclonus syndrome;
SECRETARY OF HEALTH                         *         acute cerebellar ataxia
AND HUMAN SERVICES,                         *
                                            *
                      Respondent.           *
                                            *
*************************************
Lawrence Gene Michel, Kennedy, Berkley, et. al., Salina, KS, for Petitioner
Darryl Wishard, United States Dep’t of Justice, Washington, DC, for Respondent

                                 UNPUBLISHED DECISION1

        On August 15, 2013, the parties in the above-captioned case filed a Stipulation
memorializing their agreement as to the appropriate amount of compensation in this case.
Petitioner alleges that her child suffered from opsoclonus-myoclonus syndrome, which caused
acute cerebellar ataxia and its related symptoms as a consequence of the child receiving an
influenza (“flu”) vaccine, which is a vaccine contained in the Vaccine Injury Table, 42 C.F.R §
100.3(a), and which the child received on or about October 21, 2009. Petitioner alleges that her
1
  Because this decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post it on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, § 205, 44 U.S.C. § 3501 (2006).
The decisions of the special master will be made available to the public with the exception of
those portions that contain trade secret or commercial or financial information that is privileged
and confidential, or medical or similar information whose disclosure would clearly be an
unwarranted invasion of privacy. As provided by Vaccine Rule 18(b), each party has 14 days to
file a motion requesting the redaction from this decision of any such alleged material. In the
absence of a timely request, which includes a proposed redacted decision, the entire document
will be made publicly available. If the special master, upon review of a timely filed motion to
redact, agrees that the identified material fits within the categories listed above, the special
master shall redact such material from the decision made available to the public. 42 U.S.C. §
300aa-12(d)(4); Vaccine Rule 18(b).


                                                1
child experienced the residual effects of this injury for more than six months. Petitioner also
represents that there have been no prior awards or settlement of a civil action for these damages.
Petitioner seeks compensation related to her injuries pursuant to the National Vaccine Injury
Compensation Program, 42 U.S.C. §300aa-10 to 34.

        Respondent denies that the flu vaccine caused Petitioner’s child’s opsoclonus-myoclonus
syndrome, acute cerebellar ataxia or any other injury and denies that Petitioner’s child’s current
disabilities are sequelae of the alleged vaccine-related injury. Nonetheless, the parties have
agreed informally to resolve this matter. Stipulation, Appendix A hereto.

       The undersigned hereby ADOPTS the parties’ said Stipulation, attached hereto as
Appendix A, and awards compensation in the amount and on the terms set forth therein.
Specifically, Petitioner is awarded:

           a. a lump sum of $40,000.00, in the form of a check payable to Petitioner, for
              reimbursement of past expenses paid on behalf of Malory; and

           b. a lump sum of $210,000.00, in the form of a check payable to Petitioner, as
              guardian of Malory’s estate. This amount represents compensation for all
              damages that would be available under 42 U.S.C. § 300aa-15(a).

        The Court thanks the parties for their cooperative efforts in resolving this matter. In the
absence of a motion for review filed pursuant to RCFC, Appendix B, the Clerk is directed to
enter judgment accordingly.2

       IT IS SO ORDERED.


                                              s/Daria J. Zane
                                              Daria J. Zane
                                              Special Master




2
  This document constitutes a final “decision” in this case pursuant to 42 U.S.C. § 300aa-
12(d)(3)(A). Unless a motion for review of this decision is filed within 30 days, the Clerk of the
Court shall enter judgment in accordance with this decision. Pursuant to Vaccine Rule 11(a), the
parties can expedite entry of judgment by each party filing a notice renouncing the right to seek
review by a United States Court of Federal Claims judge.

                                                 2
                 IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                           OFFICE OF SPECIAL MASTERS

                                               )
MALORY K. ROLLINS, a minor,                    )
by and through her natural parent              )
and guardian, KRISTY ROLLINS,                  )
                                               )
                        Petitioner,            )       No. ll-495V ECF
        v.                                     )       Special Master Zane
                                               )
                                               )
SECRETARY OF HEALTH                            )
AND HUMAN SERVICES,                            )
                                               )
                        Respondent.            )
______________ )
                                          STIPULATION

        The parties hereby stipulate to the following matters:

        I.   Petitioner, on behalf of her daughter, Malory K. Rollins ("Malory"), filed a petition

for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.

§ 300aa-JO to 34 (the "Vaccine Program").      The petition seeks compensation for injuries

allegedly related to the receipt of the influenza ("flu") vaccine, which is contained in the Vaccine

Injury Table (the "Table"), 42 C.F .R. § 100.3(a).

       2.    Malory received the flu vaccine on October 21, 2009.

       3.    The vaccine was administered within the United States.

       4.    Petitioner alleges that, as a result of receiving the vaccine, Malory suffered from

opsoclonus-myoclonus syndrome, which caused acute cerebellar ataxia and its related symptoms.

       5.    Petitioner represents that there has been no prior award or settlement of a civil action

for damages on behalf of Malory as a result of an alleged vaccine-related injury.

                                                   1
         6.   Respondent denies that the vaccine caused Malory to suffer any of the alleged

 injuries or any other injuries.

         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 payments:

                A. A lump sum of $40,000.00, in the form of a check payable to the petitioner,
                for reimbursement of past expenses paid on behalf of Malory; and

                B. A lump sum of $210,000.00, in the form of a check payable to the petitioner,
                as guardian of Malory's estate.

        The above payments represent compensation for all damages that would be available

under 42 U.S.C. § 300aa-l 5(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)(!), 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

                                                 2
 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 amount

 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 Malory, 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.    Petitioner represents that she presently is, or withln 90 days of the date of judgment

will become, duly authorized to serve as guardian of Malory's estate under the laws of the State

of Nebraska.     No payments pursuant to this Stipulation shall be made until petitioner provides

the Secretary with documentation establishing the appointment of a guardian for Malory's estate.

If petitioner is not authorized by a court of competent jurisdiction to serve as guardian of

Malory's estate at the time a payment pursuant to this Stipulation is to be made, any such

payment shall be paid to the party or parties appointed by a comt of competent jurisdiction to

serve as guardian of Malory's estate upon submission of written documentation of such

appointment to the Secretary.

        14.    In return for the payments described in paragraph 8, and any payments that may be

made as described in paragraph 9, petitioner, in her individual capacity, and on behalf of Malory,

and Malory'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, causes of action (including agreements,

                                                  3
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 Malory resulting from, or alleged to

have resulted from, the flu vaccine administered on October 21, 2009, as alleged by petitioner in

a petition for vaccine compensation filed on or about August 1, 2011, in the United States Court

of Federal Claims as petition No. l l-495V.

        15.   If Malory 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.

        16.   If the special master fails to issue a decision in complete conformity with the terms

of this Stipulation or ifthe 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.

        17.   This Stipulation expresses a full and complete negotiated settlement ofliability 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

patties 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.



                                                  4
        18. 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 Malory to suffer from her

alleged injuries or any other injury.

        19. All rights and obligations of petitioner hereunder shall apply equally to petitioner's

heirs, executors, administrators, successors, and/or assigns, as legal representative of Malory.

                                    END OF STIPULATION




                                                5
Respectfully submitted,

PETITIONER:




ATTORNEY OF RECORD FOR                       AUTHORIZED REPRESENTATIVE
PETITI ER:                                   OF THE ATTORNEY GENERAL:     ~


                                             v~~
Kennedy Berkley Yarnevich & Williamson
                                             VIN~TANOSKI ~
                                             Deputy Director
119 West Iron Avenue, 7th Floor              Torts Branch
P.O. Box 2567                                Civil Division
Salina, KS 67402-2567                        U.S. Department of Justice
(785) 825-4674                               P.O. Box i46
                                             Benjamin Fnmklin Station
                                             Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE                    ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH                   RESPONDENT:
AND HUMAN SERVICES:




VITO CASERTA, M.D., M.P.H.
Acting Director, Division of Vaccine
                                             ~
                                             Trial Attorney
   Injury Compensation (DVIC)                Torts Branch
Director, CoWltermeasures Injury             Civil Division
   Compensation Program (CICP)               U.S. Department of Justice
Healthcare Systems Bureau                    P.O. Box 146
U.S. Department of Health                    Benjamin Franklin Station
  and Human Services                         Washington, DC 20044-0146
5600 Fishers Lane                            (202) 616-4357
Parklawn Building, Mail Stop 11 C-26
Rockville, MD 20857


Dated:   _0~(_1~-+(_(>
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