         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-0298V
                                   Filed: November 20, 2017
                                        UNPUBLISHED


    ROBERT W. MONTAGUE,

                        Petitioner,                          Special Processing Unit (SPU); Joint
    v.                                                       Stipulation on Damages; Tetanus
                                                             Diphtheria (Td) Vaccine; Brachial
    SECRETARY OF HEALTH AND                                  Neuritis; Parsonage Turner
    HUMAN SERVICES,                                          Syndrome

                       Respondent.


Danielle Strait, Maglio Christopher & Toale, PA, Seattle, WA, for petitioner.
Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

       On March 7, 2016, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine
Act”). Petitioner alleges that he suffered injuries, including brachial plexus neuritis,
caused in fact by the tetanus diphtheria (“Td”) vaccine he received on August 21, 2015.
Petition at 1, ¶¶ 2, 6; Stipulation, filed Nov. 17, 2017, at ¶¶ 1-2, 4. Petitioner further
alleges he received the vaccination in the United States, that he suffered the residual
effects of his injuries for more than six months, and that neither he nor any other party
has received an award or settlement for his injuries alleged as vaccine caused. Petition
at ¶¶ 2, 7-8; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner suffered the onset
of brachial neuritis within the time period set forth in the Table and denies that the Td
vaccine caused his current condition.” Stipulation at ¶ 6.



1
  Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to 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 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
       Nevertheless, on November 17, 2017, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. The
undersigned finds the stipulation reasonable and adopts it as the decision of the Court
in awarding damages, on the terms set forth therein.

     Pursuant to the terms stated in the attached Stipulation, the undersigned
awards the following compensation:

        A lump sum of $60,000.00 in the form of a check payable to petitioner.
        Stipulation at ¶ 8. This amount represents compensation for all items of
        damages that would be available under § 15(a). Id.

       The undersigned approves the requested amount for petitioner’s compensation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment in accordance with this decision.3

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          Chief Special Master




3
  Pursuant to Vaccine Rule 11(a), entry of judgment can be 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
____________________________________
                                     )
ROBERT W. MONTAGUE,                  )
                                     )
            Petitioner,              )
                                     )  No. 16-298V
      v.                            )   Chief Special Master Dorsey
                                     )  ECF
SECRETARY OF HEALTH AND              )
HUMAN SERVICES,                     )
                                     )
            Respondent.              )
____________________________________)

                                          STIPULATION

       The parties hereby stipulate to the following matters:

       1. Petitioner, Robert W. Montague, 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 tetanus-diphtheria (“Td”) vaccine, which is contained in the Vaccine Injury Table (the

“Table”), 42 C.F.R. § 100.3(a).

       2. Petitioner received a Td immunization on August 21, 2015.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that he suffered the first symptom or manifestation of the onset of

brachial neuritis within the time period set forth in the Table. Petitioner further alleges that he

experienced residual effects of his 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 injuries.

       6. Respondent denies that petitioner suffered the onset of brachial neuritis within the

time period set forth in the Table and denies that the Td vaccine caused his 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)(1), the Secretary of Health and Human Services will issue

the following vaccine compensation payment:

        A lump sum of $60,000.00, 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) for injuries related to petitioner’s receipt of the Td vaccine.

        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 Td vaccination administered on August 21, 2015, as

alleged by petitioner in a petition for vaccine compensation filed on or about March 7, 2016, and

an amended petition filed on November 10, 2016, in the United States Court of Federal Claims

as petition No. 16-298V.

       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




                                                 3
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 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 petitioner suffered the onset of brachial neuritis

within the time period set forth in the Table or that Td vaccine caused petitioner to develop

brachial neuritis 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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