     In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-390V
                                         UNPUBLISHED


    GERALD GORDON,                                            Chief Special Master Corcoran

                         Petitioner,                          Filed: April 15, 2020
    v.

    SECRETARY OF HEALTH AND                                   Special Processing Unit (SPU); Joint
    HUMAN SERVICES,                                           Stipulation on Damages; Tetanus
                                                              Diphtheria acellular Pertussis (Tdap)
                        Respondent.                           Vaccine; Brachial Neuritis


Andrew Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.

Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.


                               DECISION ON JOINT STIPULATION 1

        On March 14, 2018, Gerald Gordon 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 brachial neuritis caused by a tetanus-
diphtheria-acellular pertussis (“Tdap”) vaccine administered on March 30, 2017.
Petition at 1; Stipulation, filed April 14, 2020, at ¶¶ 1-3. Petitioner further alleges that
the vaccine was administered within the United States, that he experienced residual
effects of his injury for more than six months, and that there has been no prior award or
settlement of a civil action for damages as a result of his condition. Petition at 3;
Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a Table brachial
neuritis injury within the timeframe set forth in the Table; and denies that the Tdap
immunization is the cause of petitioner’s alleged brachial neuritis and/or any other
injury.” Stipulation at ¶ 6.


1
  Because this unpublished decision contains a reasoned explanation for the action in this case, I am
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). 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, I agree that the identified material fits within this definition, I 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 April 14, 2020, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. I find the stipulation
reasonable and adopt it as my decision awarding damages, on the terms set forth
therein.

     Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:

        A lump sum of $50,000.00 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.

       I approve 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/Brian H. Corcoran
                                          Brian H. Corcoran
                                          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.

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                  THE UNITED STATES COURT OF FEDERAL CLAIMS
                          OFFICE OF SPECIAL MASTERS


GERALD GORDON,

                       Petitioner,

V.                                                       No. 18-390V
                                                         Chief Special Master Brian H. Corcoran
SECRETARY OF HEALTH AND                                  ECF
HUMAN SERVICES,

                       Respondent.


                                            STIPULATION

The parties hereby stipulate to the following matters:

       1. Gerald Gordon ("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 a 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 a Tdap vaccine on or about March 30, 2017, in his left deltoid.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that the Tdap vaccine caused him to develop brachia! neuritis 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 as a result of his condition.
        6. Respondent denies that petitioner sustained a Table brachial neuritis injury within the

timeframe set forth in the Table; and denies that the Tdap immunization is the cause of

petitioner's alleged brachial neuritis and/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 $50,000.00 in the form of a check payable to petitioner. This amount
        represents all compensation for damages that would be available under 42 U.S.C.
        § 300aa-l 5(a) for injuries allegedly related to petitioner's receipt of the Tdap 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-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.

        I 0. Petitioner and his 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-15(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 pre-paid basis.




                                                  2
        11. Payment made pursuant to paragraph 8 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 .

        12. The parties and their attorneys further agree and stipulate that, except for any award

for attorneys' fees and litigation costs, and past unreimbursable 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-l 5(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 and/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 Tdap vaccination administered on

or about March 30, 2017, as alleged by petitioner in a petition for vaccine compensation filed on

or about March 14, 2018, in the United States Court of Federal Claims as petition No. 18-390V.

        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.




                                                      3
        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.

        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

brachia! neuritis and/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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Respectfully submitted,

PETITIONER:


~~
GERALD GORDON



ATTORNEY OF RECORD FOR                     AUTHORIZED REPRESENTATIVE
PETITIONER:                                OF THE ATTORNEY GENERAL:

                                            ~ ? l__
VAN COTT & T ALAMAN , PLLC                 Deputy Director
3030 N. Third St., Ste. 790                Torts Branch
Phoenix, Arizona 85012                     Civil Division
(602) 257-9160                             U.S. Department of Justice
                                           P.O. Box 146
                                           Benjamin Franklin Station
                                           Washington, DC 20044-0146


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



TAMARA OVERBY
Acting Director, Division oflnjury         Senior Trial Attorney
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                          Benjamin Franklin Station
Parklawn Building, Mail Stop 08Nl46B       Washington, DC 20044-0146
Rockville, MD 20857                        (202) 616-9847




Dated:   4 / t'-t { rO



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