         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-1829V
                                   Filed: September 19, 2019
                                         UNPUBLISHED


    PEGGY DOUGHERTY,

                        Petitioner,
    v.                                                       Special Processing Unit (SPU); Joint
                                                             Stipulation on Damages; Influenza
    SECRETARY OF HEALTH AND                                  (Flu) Vaccine; Guillain-Barre
    HUMAN SERVICES,                                          Syndrome (GBS)

                       Respondent.


Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

       On November 21, 2017, 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 developed Guillain-Barré Syndrome (“GBS”)
as a result of an influenza (“flu”) vaccination administered on September 16, 2016.
Petition at 1, 3; Stipulation, filed September 18, 2019, at ¶¶ 1-2, 4. Petitioner further
alleges that she received the vaccine in the United States, that she experienced the
residual effects of this injury 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 1, 3; Stipulation at ¶¶ 3-4, 6.


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 Because this unpublished decision contains a reasoned explanation for the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).
       On September 18, 2019, 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 $252,000.00 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


PEGGY DOUGHERTY,

                Petitioner,                           No. l7-1829V
                                                      Chief Special Master Dorsey
v.                                                    ECF

 SECRETARY OF HEALTH AND
 HUMAN SERVICES,

                Respondent.


                                          STIPULATION

       The parties hereby stipulate to the following matters:

       1. Petitioner, Peggy Dougherty, 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") vaccine, which vaccine is contained in the Vaccine Injury Table (the

"Table"), 42 C.F.R. § 100.3 (a).

       2. Petitioner received a flu vaccine on or about September 16, 2016.

       3. The vaccine was administered within the United States.

       4. Petitioner sustained the first symptom or manifestation of onset of Guillain-Barre

Syndrome ("OBS") within the time period set forth in the Table, and experienced the residual

effects of this injury for more than six months.

       5.      There is not a preponderance of evidence demonstrating that petitioner's GBS is
I

due to a factor unrelated to her immunization.




                                            Pagel of 5
        6. 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.

        7. Accordingly, petitioner is entitled to compensation for her OBS under the terms of the

Vaccine Act. Therefore, 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 $252,000.00 in the form of a check payable to petitioner,
               representing compensation for all damages 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 wiU 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 they have identified to respondent all known

sources of payment for items or services for which the Program is not primarily liable under 42

U.S.C. § 300aa-1 S(g), including 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 entities that provide health services on a prepaid basis.




                                              Page 2 of 5
        11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded

pursuant to paragraph 9 will be made in accordance with 42 U.S.C. § 300aa-1S(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 o~ 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, administi·ators, successors, and 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, Joss 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

United States 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 gl'owing 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 or about September 16, 2016,

as alleged by petitioner in a petition for vaccine compensation filed on or about November 21,

20.17, in the United States Court of Federal Claims as petition No. 17-1829V.

        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.




                                              Page 3 of 5
        15. If the special master fails to issue a decision in complete conformity with the terms of

this Stipulation or if the _United States 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 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 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.    The 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 OBS or any other

injury or her current condition; however, petitioner has satisfied the Table criteria to establish

entitlement to compensation.

        18.    All rights and obligations of petitioner hereunder shall apply equally to petitioner's

heirs, executors, administrators, successors, and/or assigns.

                                      END OF STIPULATION




                                              Page 4 of 5
Respectfully submitted,




ATI'ORNEY OF RECORD FOR                             AUTHORIZED REPRESENTATIVE
PETITIONER:                                         OF THE ATTORNEY GENERAL:



.                satsl -
MAGLIO, CHRISTOPHER & TOALE
1605 Main St.
                                                    ~ v::-
                                                    Deputy Director
                                                    Torts Branch
Suite 710                                           Civil Division
Sarasota, FL 34236                                  U.S. Department of Justice
(888) 952-5242                                      P. 0. Box 146
                                                    Benjamin Franklin Station
                                                    Washington, D.C. 20044-0146


AUTHORIZED REPRESENTATIVE OF                        ATTORNEY OF RECORD FOR
THE SECRETARY OF HEALTH AND                         RESPONDENT:
HUMAN SERVICES:



TAMARA OVERBY
Acting Director, Division of
                                                    MAda~~~~-
                                                    Trial Attorney
Injury CQmpensation Programs (DICP)                 Torts Branch, Civil Division
Healthcare Systems Bureau                           U.S. Department of Justice
U.S. Department of Health                           P.O. Box 146
and Human Services                                  Benjamin Franklin Station
5600 Fishers Lane                                   Washington, D.C. 20044-0146
Parklawn Building, Stop-0.8Nl46B                    Tel: (202) 305-0660
Rockville, MD 20857




Dated:    9I18/fMlj
            r,   J



                                      Page 5 of S
