         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-1067V
                                     Filed: March 15, 2018
                                         UNPUBLISHED


    KIM LAFOUNTAINE,
                                                             Special Processing Unit (SPU); Joint
                        Petitioner,                          Stipulation on Damages; Tetanus
    v.                                                       Diphtheria acellular Pertussis (Tdap)
                                                             Vaccine; Shoulder Injury Related to
    SECRETARY OF HEALTH AND                                  Vaccine Administration (SIRVA)
    HUMAN SERVICES,

                       Respondent.


Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION 1

Dorsey, Chief Special Master:

        On August 26, 2018, 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 she suffered left shoulder injuries as a result of
her October 15, 2015 tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination.
Petition at 1; Stipulation, filed March 15, 2018, at ¶ 4. Petitioner further alleges that she
experienced residual effects of her condition for more than six months and that there
has been no prior award or settlement of a civil action for damages on her behalf as a
result of her condition. Petition at 3; Stipulation at ¶¶ 4-5. “Respondent denies that the
Tdap immunization is the cause of petitioner’s alleged shoulder injuries or any other
injury or condition. ” Stipulation at ¶ 6.

       Nevertheless, on March 15, 2018, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. The undersigned

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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.

2National 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).
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 $65,000.00 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 42 U.S.C. § 300aa-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


KIM LAFOUNTAINE,              )
                              )
          Petitioner,         )
v.                            )                       No. 16-1067V
                              )                       Chief Special Master Dorsey
SECRETARY OF HEALTH AND HUMAN )                       ECF
SERVICES,                     )
                              )
          Respondent.         )
                              )

                                         STIPULATION

       The parties hereby stipulate to the following matters:

       1. Kim LaFountaine, 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 tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine, which vaccine is contained in the

Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).

       2. Petitioner received the Tdap vaccination on October 15, 2015.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that she suffered left shoulder injuries as the result of the Tdap

vaccination and that she experienced the residual effects of these conditions 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.

       6. Respondent denies that the Tdap immunization is the cause of petitioner’s alleged

shoulder injuries or any other injury or 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 $65,000.00, 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 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.

        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.


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       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-15(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, 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 Tdap vaccine administered on or about October 15, 2015, as

alleged by petitioner in a petition for vaccine compensation filed on August 26, 2016, in the

United States Court of Federal Claims as petition No. 16-1067V.

       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 the Tdap vaccine caused petitioner’s alleged

shoulder injuries or any other injury or her current condition.

       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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