         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 18-0576V
                                      Filed: July 12, 2019
                                        UNPUBLISHED


    HOWARD DUNN,

                        Petitioner,
    v.                                                       Special Processing Unit (SPU); Joint
                                                             Stipulation on Damages; Influenza
    SECRETARY OF HEALTH AND                                  (Flu) Vaccine; Rash; Wound Abscess
    HUMAN SERVICES,

                       Respondent.


Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

       On April 20, 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 the influenza (“flu”) immunization her received on October
23, 2016,caused a rash/wound abscess on his left shoulder, and that he experienced
residual effects of this injury for more than six months. Petition at 1, 3; Stipulation, filed
July 5, 2019, at ¶¶ 2, 4. “Respondent denies that the flu vaccine caused petitioner’s
rash/wound abscess on his left shoulder, any other injury, or his current disabilities.”
Stipulation at ¶ 6.

       Nevertheless, on July 5, 2019, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. The undersigned

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the internet. 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. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required 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).
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 $40,000.00 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


                                                        )
HOWARD DUNN,                                            )
                                                        )
                         Petitioner,                    )
                                                        )         No.18-576V
v.                                                      )      Chief Special Master Dorsey
                                                        )      ECF
SECRETARY OF HEALTH AND                                 )
HUMAN SERVICES,                                         )
                                                        )

__________________       Respondent.                    )
                                                        )

                                           STJPULA TION

         The parties hereby stipulate to the following matters:

         1. Howard Dunn, petition~r, 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 ("flu"), which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. §

100.3 (a).

         2. Petitioner received his flu immunization on October 23, 2016. 1

         3. The vaccines were administered within the United States.

         4. Petitioner alleges that the flu vaccine caused a rash/wound abscess on his left

shoulder, and that he experienced residual effects of this 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 his behalf as a result of his condition.


1   Petitioner also received a non-covered Pneumovax vaccine on October 23, 2016.
                                                1
        6. Respondent denies that the flu vaccine caused petitioner's rash/wound abscess on his

left shoulder, any other injury, or his cunent disabilities.

        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 $40,000.00 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-2l(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 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.


                                                  2
        11. Payments made pursuant to paragraphs 8 and 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.

      . 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 payment described in paragraph 8 and any amount awarded pursuant

to paragraph 9, petitioner, in his individual capacity and on behalf of himself, 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 flu

vaccination administered on October 23, 2016, as alleged by petitioner in a petition for vaccine

compensation filed on or about April 20, 2018, in the United States Court of Federal Claims as

petition No. 18-576V.

       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 tenns

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 Stipu]ation 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 the flu vaccine caused petitioner's rash/wound

abscess on his left shoulder, any other injury, or his current disabilities.

           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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Respectfully submitted,

PETITIONER:
~./1
   . I ·'           ~ I;
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1-towARD DUNN
               .
                   L ~ , / c-c?vt"'----


ATTORNEY OF RECORD FOR                        AUTHORIZED REPRESENTATIVE
PETITIONER:                                   OF THE ATTORNEY GENERAL:
                                               ~a~f_~~
                                                  ~~LP~
                                              CATHARINE E. REEVES
Jeffrey S. Pop & Associates                   Deputy Director
9150 Wilshire Blvd.                           Torts Branch
Suite 241                                     Civil Division
Beverly Hills, CA 90212                       U.S. Department of Justice
(310) 273-5462                                P.O. Box 146
                                              Benjamin Franklin Station
                                              Washington, DC 20044-0146


AUTHORIZED REPRESENTATIVE                     ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH                    RESPONDENT:



                                              CLAUD.
AND HUMAN SERVICES:

 WaAd s~~tft1.-
NARAYAN NAIR, M.D.
Director, Division of Injury                  Senior Trial Attomey
Compensation Programs                         Torts Branch
Healthcare Systems Bureau                     Civil Division
U.S. Department of Health                     U.S. Department of Justice
and Human Services                            P.O. Box 146
5600 Fishers Lane                             Berijamin Franklin Station
Parklawn Building, Mail Stop 08N146B          Washington, DC 20044-0146
Rockville, MD 20857                           Tel: (202) 616-4138




Dated:   _7____,. _,_. ._/_,__
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