In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS

******************** *
ROBERT WHALEY,           *
                         *                         No. 16-192V
             Petitioner, *                         Special Master Christian J. Moran
                         *
v.                       *                         Filed: January 5, 2017
                         *
SECRETARY OF HEALTH      *                         Stipulation; influenza (“flu”) vaccine;
    AND HUMAN SERVICES, *                          chronic inflammatory demyelinating
                         *                         polyneuropathy (“CIDP”); Anti-MAG
                         *                         neuropathy.
                         *
             Respondent. *
******************** *

Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner;
Lisa A. Watts, U.S. Dep’t of Justice, Washington, DC, for Respondent.

                             UNPUBLISHED DECISION1

       On January 4, 2017, the parties filed a joint stipulation concerning the
petition for compensation filed by Robert Whaley on February 8, 2016. In his
petition, petitioner alleged that the influenza vaccine, which is contained in the
Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on
October 15, 2014, caused him to develop chronic inflammatory demyelinating
polyneuropathy (“CIDP”) and/or Anti-MAG neuropathy. Petitioner further alleges
that he suffered the residual effects of this injury for more than six months.
Petitioner represents that there has been no prior award or settlement of a civil
action for damages on his behalf as a result of his condition.


       1
         The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
       Respondent denies that the influenza vaccine caused petitioner to develop
CIDP, Anti-MAG neuropathy, or any other injury, and further denies that
petitioner’s current disabilities are sequelae of a vaccine-related injury.

      Nevertheless, the parties agree to the joint stipulation, attached hereto. The
undersigned finds said stipulation reasonable and adopts it as the decision of the
Court in awarding damages, on the terms set forth therein.

       Damages awarded in that stipulation include:

       A lump sum payment of $100,000.00 in the form of a check payable to
       petitioner, Robert Whaley. This amount represents compensation for
       all damages that would be available under 42 U.S.C. § 300aa-15(a).

       In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 16-192V according to this decision
and the attached stipulation.2


       IT IS SO ORDERED.

                                                     s/Christian J. Moran
                                                     Christian J. Moran
                                                     Special Master




       2
          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
    Case 1:16-vv-00192-UNJ Document 35 Filed 01/04/17 Page 1 of 5




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

ROBERT WHALEY,                                     )   :ECF
                                                   )
                               Petitioner,         )
                                                   )
               v.                                  )   No. 16-192V
                                                   )   Special Master
SECRETARY OF HEALTH AND HUMAN                      )   Cluistian J. Moran
SERVICES,                                          )
                                                   )
                               Respondent.         )
~~~~~~~~~~~~~~)

                                             STIPULATION

        The parties hereby stipulate to the following matters:

        1. Robert Whaley ("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 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 a flu vaccine on October 15, 2014.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that he developed chronic inflammatory demyelinating

polyneuropathy ("CIDP") and/or Anti-MAG neuropathy, which were caused-in-fact by the flu

vaccine. Petitioner further alleges that he suffered the residual effects of his iajuries for more

than six months.

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

for damages on his behalf as a result of his condition.
    Case 1:16-vv-00192-UNJ Document 35 Filed 01/04/17 Page 2 of 5




        6. Respondent denies that the flu vaccine caused petitioner's alleged CIDP, Anti-MAG

neuropathy, or any other injury, and further denies that petitioner's cwTent disabilities are

sequelae of a vaccine-related injury.

        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 tenns of this Stipulation, and after petitioner bas filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa-2 l(a)(l), the Secretary of Health and Human Services will issue

the following vaccine compensation payment;

        A lump sum of $100.000.00 in the form of a check payable to petitioner. This amount
        represents compensation for all damages that would be available Wlder 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 his attorney represent that they have identified to respondent all

known sources of payment for items or se1vices for which the Program is not primarily liable

under 42 U.S.C. § 300aa-15(g), including 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 ct seq.)), or entities that provide health services on a prepaid basis.




                                                  2
    Case 1:16-vv-00192-UNJ Document 35 Filed 01/04/17 Page 3 of 5




        11. Payment made pursuant to paragraph 8, and any amounts awarded pursuant to

paragraph 9 of th.is 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-1 5(g) and (h).

        13. In return for the payments described in paragraphs 8 and 9, petitioner, in his

individual capacity, and on behalf of his heirs, executors, administrators, successors, and 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 United States Court ofFederal 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 15, 2014, as alleged by petitionerin a petition for vaccine compensation filed on or

about February 8, 2016, in the United States Court of Federal Claims as petition No. 16-192V.

        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 tenns

of this Stipulation or if the United States Court of Federal Claims foils to enter judgment in



                                                     3
     Case 1:16-vv-00192-UNJ Document 35 Filed 01/04/17 Page 4 of 5




conformity with a decision that is in complete confo1mity 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 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 conshued as an admission by the United States or the

Secretary of Health and Human Services that flu vaccine caused petitioner's alleged CIDP, Anti-

MAG neuropathy, or any other injury, or that his current disabilities are sequelae of his alleged

vaccine-related injuries.

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

heirs, executors, administrators, successors, and/or assigns.

I

                                      END OF STIPULATION
I

I

II




                                                   4
  Case 1:16-vv-00192-UNJ Document 35 Filed 01/04/17 Page 5 of 5




   Respectfully submitted,




   ROBERT WHALEY                ___          ·                 . ---- --
                 ----------·
   ATTORNEY OF RECORD FOR
                         ' ,,.,--     ·--..... - ..........L
                                                               .....   -
                                                                               '

                                                                                   AUTHORIZED REPRESENTATIVE
   PETITIONER:                                                                     OF THE AITORNEY GENERAL:
                              ()uom---~                                                                     [_L____
                                                                                                                  ---.._
~ C.\ioftU/\_ ~                     Ru.u 83 .l lc)Lz)
   RONALD C. HOMER, SQ.                                                                       EE. REEVES
   CONWAY, HOMER & CHIN-CAPLAN, P.C.                                               Ac       eputy Director
   16 Shawmut Street                                                               Torts Branch
   .Boston, MA 02116                                                               Civil Division
   Tel: (617) 695-1990                                                             U.S. DepartmentofJusticc
                                                                                   P. 0 . Box 146
                                                                                   Benjamin Franklin Station
                                                                                   Washington, DC 20044-0146


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




   Director                                                                         Senior Trial Attorney
   Division of Injury Compensation Programs                                         Torts Branch
   Healthcare Systems Bureau                                                        Civil Division
   Health Resources and Services Administration                                     U. S. Department of Justice
   U.S. Department of Health and Human Services                                     P. 0. Box 146
   5600 Fishers Lane                                                                Benjamin Franklin Station
   Pnrklown Building, Stop 08Nl46B                                                  Washington, DC 20044-0146
   Rockville, Mf   0857                                                             Tel: (202) 616-4099

   DATE: ~_.,.,__   ____...,_.._




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