In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS

******************** *
ROBERT KAPER,                         *      No. 13-504V
                                      *      Special Master Christian J. Moran
                  Petitioner,         *
                                      *      Filed: August 20, 0214
v.                                    *
                                      *
SECRETARY OF HEALTH                   *      Stipulation; influenza (“flu”) vaccine;
AND HUMAN SERVICES,                   *      Guillain-Barré syndrome (“GBS”).
                                      *
                  Respondent.         *
******************** *
Lawrence R. Cohan, Anapol, Schwartz, et al., Philadelphia, PA, for Petitioner;
Jennifer L. Reynaud, U. S. Dep’t of Justice, Washington, DC, for Respondent.

                              UNPUBLISHED DECISION1

       On August 18, 2014, respondent filed a joint stipulation concerning the
petition for compensation filed by Robert Kaper on June 24, 2013. In his petition,
petitioner alleged that the influenza vaccine, which is contained in the Vaccine
Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on
November 9, 2011, caused him to suffer Guillain-Barré Syndrome (“GBS”).2
Petitioner further alleges that he suffered the residual effects of this injury for more
than six months. Petitioner represents that there has been no prior award or
settlement of a civil action for damages on his behalf as a result of her condition.

       Respondent denies that petitioner's alleged GBS and residual effects were


       1
          The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
       2
         The petition identifies the date of vaccination as November 10, 2011, but the medical
records confirm that November 9, 2011, is the correct date of vaccination.
caused-in-fact by the flu vaccine. Respondent further denies that the flu vaccine
caused petitioner any other injury or his current condition.

      Nevertheless, the parties agree to the joint stipulation, attached hereto as
Appendix A. The undersigned finds said stipulation reasonable and adopts it as the
decision of the Court in awarding damages, on the terms set forth therein.

        Damages awarded in that stipulation include:

        A lump sum payment of $160,000.00 in the form of a check payable to
        Robert Kaper. This amount represents compensation for all damages
        that would be available under 42 U.S.C. § 300aa-15(a).

       In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 13-504V according to this decision
and the attached stipulation.3

        Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6353.

        IT IS SO ORDERED.

                                                     s/Christian J. Moran
                                                     Christian J. Moran
                                                     Special Master




        3
          Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 1 of 5




                    IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                              OFFICE OF SPECIAL MASTERS


    ROBERT KAPER,

                   Petitioner,                                      No. 13-504V
                                                                    Special Master Moran
    v.                                                              ECF

    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                   Respondent.



                                                 STIPUJ.,ATION

         The po1ties hereby stipulate to the fo llowing mat1ers:

          l. Robert Kaper ("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 petitione1"s receipt

 of an influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the

 "Table"), 42 C.F.R. § 100.3(a).

         2. Petitioner received his flu immunization on November 9, 2011 . 1

         3. The vaccine was administered within the United States.

         4. Petitioner alleges that he sustained a vaccine-related injury diagnosed as

Gui Ila in-Barre Syndrome ("OBS") that was caused-in-fact by the flu vaccine. He further alleges

that he experienced the residual effects of his injury for more than six months.


1
 The petition identifies the dntc of vaccination as November 10, 20 I I, but tho medical records confirm tliat November
9, 20 I I, is the correct date of vaccination.
Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 2 of 5




             5. Petitioner represents that there has been no prio1 award or settlement of a civil action
                                                                 ·

  for damages as a result of his condition.

             6. Respondent denies that petitioner's alleged GBS and residual effects were

  caused-in-fact by the flu vaccine. Respondent further denies that the flu vaccine caused petitioner

  any other i1tjury or his current condition.

             7. Mnintaining their above-stated positions, 1hc parties nevettheless now agree that the

 issues between them shal! 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 t~is 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 $160,000.00 in the form of a check payable to petitioner. This
                   am·ount represents compensation for all damages that would be available under 42
                   U.S.C. § 300aa-J 5(a).

         9. As soon as practicable after the entry ofjudgment 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-2 l(a)( I), 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.

         l 0. Petitioner and his attomey 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-l 5(g), to the extent that payment has been made or can reasonably be expected to


                                                     2
    Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 3 of 5




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. Payments made pursuant to paragraphs 8 and 9 of this Stipulation will be made in

accordance with 42 U .S.C. § 300aa- l 5(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, 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- l 5(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

Cou11 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 a flu vaccination administered on or about November 9, 20 11 , as alleged by

petitioner in a petition for vaccine compensation filed on or about Jul y 24, 201 3, in the United

States Court of Federal Claims as petition No. 13-504V.


                                                  3
Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 4 of 5




         14. If petitioner sh?uld die prior to entry ofjudgment, 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 confonnity with the terms of

 this Stipulation or if the Coutt 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 ag1-eement on the part of the

 parties hereto to make any payment or to do any act or thing other than is herein express.Jy 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

 Secretal'y of Health and Human Services that the flu vaccine caused petitioner to suffer OBS or

 any other injuries.

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

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

                            END OF STIPULATION




                                                   4
  Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 5 of 5




Respectfully submitted,

PETITIONER:




                     CORD FOR                AUTHORIZED REPRESENTATIVE
                                             OF THE ATTORNEY GENERAL:
                                             ~J~ ·
                                             lrf-4~· ~ ·
Anapol Schwartz
                                             vmcfulr   fuAT
                                             Deputy Director
                                                               ANOSKI

1710 Spruce Street                           Torts Branch
Philadelphia, PA 19103                       Civil Division
(215) 790-4567                               U.S. Department of Justice
                                             P.O. Box 146
                                             Benjamin Franklin Station
                                                                          1
                                             Washington, DC 20044-0146

AUTHORIZED REPRESENTATIVE                    ATl'ORNEYOFRECORDFOR
OF THE SECRET Y F HEALTH                     RESPONDENT:
ANDH         VICE:



                  USTON, M.D., M.P.H, PAAP
Acting Director, Division of
Vaccine lnjury Compensation (DVIC)
                                             ~~'al Attorney
                                             Torts Branch
Acting Director, Countenneasures Injury      Civil Division
Compensation Program (CICP)                  U.S. Department of Justice
Healthcare Systems Bureau                    P.O. Box 146
U.S. Department of Health                    Benjamin Franklin Station
and Human Services                           Washington, DC 20044-0146
5600 Fishers Lane                            (202) 305-1586
Parklawn Building, Mail Stop 11 C-26
Rockville, MD 20857


Dated:   ~· \ 0     1   201 j
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