       In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                          No. 15-0039V
                                       Filed: April 15, 2015

* * * * * * * * * * * * * * * *                                UNPUBLISHED
AUDRA NAJERA,                 *
                              *                                Special Master Dorsey
          Petitioner,         *
                              *
v.                            *
                              *
SECRETARY OF HEALTH           *                                Joint Stipulation on Damages;
AND HUMAN SERVICES,           *                                Influenza (Flu) Vaccine;
                              *                                Transverse Myelitis.
          Respondent.         *
                              *
* * * * * * * * * * * * * * * *

Alison H. Haskins, Maglio, Christopher and Toale, PA, Sarasota, FL, for petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for respondent.

                                            DECISION1

        On January 14, 2015, Audra Najera (“petitioner”), filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006).
Petitioner alleged that as a result of receiving an influenza (“flu”) vaccine on October 9, 2012,
she suffered from partial transverse myelitis. Petition at 4. Petitioner further alleged that she
suffered the residual effects or complications of this vaccine injury for more than six months. Id.


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
at 8-9. On April 15, 2015, the parties filed a stipulation, stating that a decision should be entered
awarding compensation.

        Respondent denies that the flu vaccine either caused or significantly aggravated
petitioner’s alleged injury or any other injuries, and denies that petitioner’s current disabilities
are the result of a vaccine-related injury. 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 $100,000.00, in the form of a check payable to petitioner. This amount
       represent 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
                   IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                             OFFICE OF SPECIAL MASTERS

                                                    )
AUDRA NAJ ERA,                                      )
                                                    )
                        Peti tioner,                )       No. I 5-39V      ECF
                                                    )
                   v.                               )       Special Master Dorsey
                                                    )
SECRETARY OF HEALTH                                 )
AND HUMAN SERVICES,                                )
                                                   )
                    Respondent.                    )
~~~~~~~~~~~~~~                                     )
                                              STIPULATIO N

          The parties hereby stipulate to the fo llowing matters:

          I.   Petitioner, Audra Najera, filed a petition fo r vaccine compensation under the

Nationa l Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l 0 to 34 (the "Vaccine

Progra m ").    The pe titio n seeks compe nsati on lor injuri es a llegedly related to petitio ne r's receipt

of the influenza (" flu") vaccine, which is conta ined in the Vaccine Inj ury Table (the "Table"), 42

C.F. R. § 100.3(a).

        2.     On October 9, 20 12, petitioner received the flu vaccine.

        3.     The flu vaccine was adm inistered within the United States.

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

transverse myelitis ("TM '"), and that she experienced symptoms of that injury for more than six

months.

       5.      Petitioner represents that there has been no pri or award or settlement of a ci vil acti on

for damages as a result of her alleged injuries.
         6.    Respondent denies that the flu vacci ne either caused or significantl y aggravated

 petitioner's alleged injury or any other injuries, and denies that petitioner's current disab ilities

 are the result of a vaccine-related injury.

         7.    Maintaining their above-stated positi ons, 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 o f this Stipu lation.

         8.    As soon as practicable after an entry of judgment reflecting a decision consistent

 with the terms of this Stipulation, and after petitioner has fil ed an election to receive

compensati on pursuant to 42 U.S.C. § 300aa-2 1(a)( I), the Secretary of Health and Human

 Services will issue the fo llowing vacc ine compensati on payment:

                  A lump sum of $ 100,000.00 , in the form of a check payable to petitioner. Thi s
                  amount represents compensati on fo r all damages that would be avai lable under 42
                  U.S.C. § 300aa-l 5(a).

        9.     As soon as practicab le after the entry of judgment on entitlemen t in this case, and

after petitioner has fil ed both a proper and timely election to receive compe nsation pursuant to

42 U.S.C. § 300aa-2 I (a)( I), and an application, the parties will submit to fwt her proceed ings

before the special master to award reasonable attorneys' fees and costs incurred in proceeding

upon this petition.

        I 0.    Petitioner and her attorney represent that compen sati on to be provided pursuant to

th is Stipulation is not for any items or services for whi ch the Program is not primarily liable

under 42 U.S.C. § 300aa- l 5(g), to the ex tent that payment has been made or can reasonably be

ex pected to be made under any State compensation programs, in surance pol icies, 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 prov ide health services on a pre-paid basis.

                                                    2
         I I.    Payment made pursuant to paragraph 8 of this Stipulation, and any amoun ts

 awarded pursuant to paragraph 9 of this Stipulation, will be made in accordance with 42 U.S.C.

 § 300aa-l 5(i), subject to the avai lability of sufficient statutory funds.

         12. The patties and their attorneys furth er agree and stipu late that, except fo r any award

 for attorneys' fees and liti gation costs, the money provided pursuant to thi s Stipulation will be

 used so lely for the benefit of petitioner, as contemplated by a strict constru ction of 42 U.S.C.

§ 300aa-15(a ) and (d), and subject to the conditi ons of 42 U.S.C. § 300aa- I 5(g) and (h).

         13.    In return fo r the payments described in paragraphs 8 and 9, petitioner, in her

indi vid ual capacity and on behalf of her heirs, executors. administrators, successors or assigns,

does fo rever irrevocably and unconditionally release, acquit and discharge the United States and

the Secretary of Health and Hum an Services from any and all actions, causes of action (including

agreements, judgments, claims, damages, loss of services, expenses and al I demands of whatever

kind or nature) that have been brought, could have been brought, or cou ld be timely brought in

the Court of Federal Claims, under the National Vaccine Injury Compensat ion Program, 42

U.S.C. § 300aa- I 0 et seq., on account of, or in any way growing out of, any and all known or

unknown, suspected or unsuspected persona l injuries to or death of petitioner resulting from. or

alleged to have resulted from, the flu vaccine administered on October 9, 20 12, as alleged by

petitioner in a petition fo r vacc in e compensati on filed on or about January 14, 20 15, in the

Un ited States Court of Federal Claims as petition No. l 5-39V.

        14.     If petitioner should die prior to entry of judgment, thi s agreement shall be vo idabl e

upon proper notice to the Court on behalfof either or both of the parties.

        15.     If the special master fa ils to issue a deci sion in compl ete conform ity with the terms

of this Stipulation or ifthe Court of Federal Claims fa il s to enter judgment in conformity with a

                                                     3
 decision that is in complete confo rmity with the terms of this Stipulation, then the part ies·

 settlement and this Stipulati on shall be vo idable at the so le discretio n of either party.

            16.   This Stipu lation expresses a full and complete negotiated settleme nt of liability and

 damages claimed under the Nationa l Chi ldhood Vaccine Injury Act of 1986, as amended ,
                                                                                         except
as otherwise noted in paragraph 9 above.         There is abso lutely no agreeme nt on the part of the

parties hereto to make any payment or to do any act or thing other than is herein ex press ly
                                                                                              stated
and clearly agreed to. The parties further agree and understand that the award described
                                                                                         in thi s
stipulati on may reflect a comprom ise 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 cond ition or in
                                                                                              the
items of compensation sought, is not grounds to modify or rev ise this agreeme nt.

           17. This Stipul ation shal l not be construed as an admission by the United States or the

Secretary of Health and Human Services that the flu vaccine received by petiti oner either caused
                                                                                                  or
significantl y aggravated petitione r' s alleged injury, or caused an y current alleged injury or

di sabi li ty.

          18. All rights and obli gations of petitioner hereund er shall apply equal ly to petitione r's

heirs, executors, adm ini strators, successo rs, and/or assigns.

                                        EN D OF STIPULATION




                                                     4
Respectfully submitted,

PETITIONER:




A'll'ORNEYOFRECORDFO R
PE1'IT10NER:


                                                                                1-_L_ __
                                                                                       --......
  aglio, Christopher & Toale, PA          Deputy Director
1605 Main Street, Suite 710               Torts Branch
Sarasota, FL 34236                        Civil Division
(888) 952-5042                            U.S. Deprutme nt of Justice
                                          P.O. Box 146
                                          Benjamin Franklin Station
                                          Washington, DC 20044-0 146

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




!~~.~~AAP ~~
Director, Division of Injury
                                          DAlUtYL R. WISHARD
                                          Senior Trial Attorney
  Compensation Programs (DICP)            Torts Branch
Hea lthcare Systems Bureau                Civil Division
U.S. Department of Hea lth And            U.S. Department of Justice
  Human Services                          P.O. Box 146
5600 Fishers Lane                         Benjamin Franklin Station
Parklawn Building, Mail Stop 11C-26       Washint;t::-., !:'C' ::! ~':'' ~ ~ '. '. ~
Rockville, MD 20857                       (202) 616-4357


Dated:   _+~(1_s-'--/f_S-_   _

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