                  In the United States Court of Federal Claims
                                      OFFICE OF SPECIAL MASTERS
                                              No. 16-1109V

*************************
                           *                                      Chief Special Master Corcoran
KATHERINE KESTERSON,       *
                           *
               Petitioner, *                                      Filed: March 24, 2020
                           *
          v.               *
                           *                                      Decision by Stipulation; Damages;
SECRETARY OF HEALTH        *                                      Guillain-Barré Syndrome; Transverse
AND HUMAN SERVICES,        *                                      Myelitis; Influenza Vaccine.
                           *
               Respondent. *
                           *
*************************


Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.

Sarah Christina Duncan, U.S. Dep’t of Justice, Washington, D.C., for Respondent.

                                   DECISION AWARDING DAMAGES 1

        On September 6, 2016, Katherine Kesterson filed a petition seeking compensation under
the National Vaccine Injury Compensation Program (“Vaccine Program”). 2 Petitioner alleges that
she suffered from Guillain-Barré Syndrome (“GBS”) and/or Transverse Myelitis (“TM”) as a
result of her October 29, 2014 receipt of the influenza (“flu”) vaccine. Moreover, Petitioner alleges
that she experienced residual effects of this injury for more than six months.




1
  Because this Decision contains a reasoned explanation for my actions in this case, I will post it on the United States
Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain
kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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). Otherwise, the whole Decision will
be available to the public. Id.
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
         Respondent denies that the flu vaccine caused Petitioner to suffer GBS, TM, or any other
neurodemyelinating disorder. Nonetheless both parties, while maintaining their above-stated
positions, agreed in a stipulation (filed on March 24, 2020) that the issues before them could be
settled, and that a decision should be entered awarding Petitioner compensation.

        I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
(as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the
terms set forth therein.

         The stipulation awards:

         •   A lump sum of $450,000.00 in the form of a check payable to Petitioner.

Stipulation ¶ 8. This amount represents compensation for all damages that would be available
under Section 15(a) of the Act.

        I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the Court is directed to enter judgment herewith. 3


         IT IS SO ORDERED.

                                                                       /s/ Brian H. Corcoran
                                                                          Brian H. Corcoran
                                                                          Chief Special Master




3
 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.

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          Case 1:16-w-01109-UNJ Document 77 Filed 03/24/20 Page 1 of 5




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

                                                   )
KA THERINE KESTERSON,                              )
                                                   )
               Petitioner,                         )
                                                   )      No. 16-l 109V
V.                                                 )      Chief Special Master Corcoran
                                                   )      ECF
SECRETARY OF HEALTH AND HUMAN                      )
SERVICES,                                          )
                                                   )
     Respondent.                                   )
________________                                   )

                                         STIPULATION

       The parties hereby stipulate to the following matters:

        I. Katherine Kesterson, 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 an 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 29, 2014.

       3. The vaccination was administered within the United States.

       4. Petitioner alleges that she suffered a neurodemyelinating disorder, including Guillain-

Barre syndrome ("GBS") and/or transverse myelitis ("TM"), as a result of receiving the flu

vaccination, and further alleges that she experienced the residual effects of her injury for more

than six months.

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

for damages on her behalf as a result of her condition.
          Case 1:16-w-01109-UNJ Document 77 Filed 03/24/20 Page 2 of 5




        6. Respondent denies that petitioner's alleged neurodemyelinating disorder, including

GBS and/or TM, were caused by the flu vaccine. Respondent further denies that the flu vaccine

caused petitioner any other injury or her current condition.

        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 payment:

        A lump sum of $450,000.00 in the form of a check payable to petitioner. This
        amount represents compensation for all damages, including pain and suffering,
        lost earnings, and past unreimbursable expenses, 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-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 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

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.


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          Case 1:16-w-01109-UNJ Document 77 Filed 03/24/20 Page 3 of 5




        11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts 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 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, and past unreimbursed expenses, 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- l 5(g) and (h).

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

individual capacity, and on behalf of her 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 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 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 vaccination administered on October 29, 2014, as

alleged by petitioner in a petition for vaccine compensation filed on or about September 6, 2016,

in the United States Court of Federal Claims as petition No. 16-1109V.

        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.




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          Case 1:16-w -01109-UNJ Document 77 Filed 03/24/20 Page 4 of 5




        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'

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 I 986, 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 caused petitioner to develop a

neurodemyelinating disorder, including OBS and/or 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
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Respectful~r11iaidyv-01109-UNJ Document 77 Filed 03/24/20 Page 5 of 5

PETITIONER:


  -fe/v·-ek.----
KATifuRINE KESTERSON


ATTORNEY OF RECORD F'OR                            AUTHORIZED RKPRl4:SENTATIVE
PETITIONER:                                        OF THE ATTORNEY GENF~RAL:


~~         cK~               {),u.o1u1a_    ¥ d b• ~
                         ~t,(_ f{tJU_~A (c){z)
                                                          t._,~----
                                                    . __ _____ .
RONALD C. HOMER)                                   CA     .     E E. REEVES
Conway Horner P. C.                                Deputy Di"rector
16 Shawmut Street                                  Torts Branch
Boston, MA 02116                                   Civil Division
Tel: (617) 695-1990                                U.S. Department of Justice
                                                   P.O. Box 146
                                                   Benjamin Franklin Station
                                                   Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE                                 ATTO.Ri"lEY OF RECORD l<'OR
OF THE SECRETARY OF HEALTH                                RESPONDENT:
AND HUMAN SERVICES:


_ Wwtd_~~~f~---- _____
TAMARA OVERBY
Acting Director, Division of Injury Compensation         ·Trial Attorney
       Programs (DICP)                                    Torts Branch
Healthcare Systems Bureau                                 Civil Division
Ucalth Resources and Services Administration              U.S. Department of Justice
U.S. Department of Health and Human Services              P.O. Box 146
5600 Fishers Lane                                         Benjamin Franklin Station
Parklawn Building, Mail Stop 08N 146B                     Washington, DC 20044-0146
Rockville, MD 20857                                       Tel: (202) 514-9729



Dated: .   :!;:/v-l{'"2..-U___ .... _____


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