                  In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                             No. 15-1076V

*************************
                           *                                      Special Master Corcoran
JAMES H. DALY,             *
                           *
               Petitioner, *                                      Filed: August 18, 2016
                           *
           v.              *
                           *                                      Decision by Stipulation; Damages;
SECRETARY OF HEALTH        *                                      Influenza (“Flu”) Vaccine;
AND HUMAN SERVICES,        *                                      Brachial Plexopathy.
                           *
               Respondent. *
                           *
*************************

Kristin M. Cafferty, Habush, Habush & Rottier, S.C., Racine, WI, for Petitioner.

Ann D. Martin, U.S. Dep’t of Justice, Washington, DC, for Respondent.

                                   DECISION AWARDING DAMAGES1

        On September 25, 2015, James H. Daly filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that he
suffered from brachial plexopathy as a result of his October 2, 2013, receipt of the influenza (“flu”)
vaccine. Moreover, Petitioner alleges that he experienced residual effects of this injury for more
than six months.

       Respondent denies that the flu vaccine caused Petitioner’s alleged brachial plexopathy, or
any other injury. Nonetheless both parties, while maintaining their above-stated positions, agreed

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).
in a stipulation (filed on August 16, 2016) 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 $115,000.00 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
                                                                          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.

                                                           2
             IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                        OFFICE OF SPECIAL MASTERS
____________________________________
                                     )
JAMES H. DALY,                      )
                                     )
            Petitioner,              )
                                     )  No. 15-1076V
      v.                            )   Special Master Corcoran
                                     )  ECF
SECRETARY OF HEALTH AND              )
HUMAN SERVICES,                     )
                                     )
            Respondent.              )
____________________________________)

                                          STIPULATION

       The parties hereby stipulate to the following matters:

       1. Petitioner, James H. Daly, 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 vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R.

§ 100.3(a).

       2. Petitioner received the influenza vaccine on October 2, 2013.

       3. The vaccine was administered in the United States.

       4. Petitioner alleges that he suffered brachial plexopathy as a result of the influenza

vaccine. Petitioner further alleges that he experienced residual effects of this condition 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 injury.

       6. Respondent denies that petitioner’s influenza vaccine caused brachial plexopathy or

any other 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 terms of this Stipulation, and after petitioner has filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

        A lump sum of $115,000.00 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-21(a)(1), 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. 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-

15(i), subject to the availability of sufficient statutory funds.



                                                    2
       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-15(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 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 influenza vaccine administered on or about October 2,

2013, as alleged by petitioner in a petition for vaccine compensation filed on or about September

25, 2015, in the United States Court of Federal Claims as petition No. 15-1076V.

       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’

settlement and this Stipulation shall be voidable at the sole discretion of either party.



                                                  3
       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 an influenza vaccine caused petitioner to develop

brachial plexopathy 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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