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

********************** *
MICHAEL MCPHERSON,        *
                          *                                 No. 11-892V
              Petitioner, *                                 Special Master Christian J. Moran
                          *
v.                        *                                 Filed: January 10, 2014
                          *
SECRETARY OF HEALTH       *
AND HUMAN SERVICES,       *                                 Stipulation; influenza vaccine;
                          *                                 hepatitis B vaccine; transverse
              Respondent. *                                 myelitis; sequela.
********************** *

Michael Andrew London, Douglas & London, P.C. New York, NY, for Petitioner;
Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for Respondent.

                               UNPUBLISHED DECISION1

        On January 6, 2014, respondent filed a joint stipulation concerning the petition for
compensation filed by Michael Mcpherson on December 21, 2011. In his petition, Mr.
McPherson alleged that the influenza vaccine, and/or the hepatitis B vaccine, which are
contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he
received on September 16 and September 25, 2009, respectively, caused him to suffer
acute transverse myelitis and sequela. 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 his condition.

       Respondent denies that the influenza vaccine and/or his hepatitis B vaccine caused
transverse myelitis, or any other injury.

     Nevertheless, the parties agree to the joint stipulation, attached hereto as
“Appendix A.” The undersigned finds said stipulation reasonable and adopts it as the

       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.
decision of the Court in awarding damages, on the terms set forth therein.

       Damages awarded in that stipulation include:

       A lump sum of $200,000.00 in the form of a check payable to petitioner,
       Michael McPherson. 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 11-892V according to this decision and the
attached stipulation.2

       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




       2
          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 1:11-vv-00892-UNJ Document 40 Filed 01/06/14 Page 1 of 5



             IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                        OFFICE OF SPECIAL MASTERS
____________________________________
                                     )
MICHAEL McPHERSON,                   )
                                     )
            Petitioner,              )
                                    )   No. 11-892V
      v.                            )   Special Master Moran
                                    )   ECF
SECRETARY OF HEALTH AND             )
HUMAN SERVICES,                     )
                                    )
            Respondent.             )
____________________________________)

                                          STIPULATION

       The parties hereby stipulate to the following matters:

       1. Petitioner, Michael McPherson, 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 vaccine and/or the Hepatitis B vaccine, which are contained in the Vaccine

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

       2. Petitioner received an influenza immunization on September 16, 2009, and a Hepatitis

B vaccine on September 25, 2009.

       3. The vaccines were administered within the United States.

       4. Petitioner alleges that he suffered transverse myelitis as a result of the influenza

vaccine and/or the Hepatitis B vaccine. Petitioner further alleges that he experienced residual

effects of his condition 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 injuries.
          Case 1:11-vv-00892-UNJ Document 40 Filed 01/06/14 Page 2 of 5



       6. Respondent denies that petitioner’s influenza vaccine and/or his Hepatitis B vaccine

caused transverse myelitis, 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 $200,000.00 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 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
          Case 1:11-vv-00892-UNJ Document 40 Filed 01/06/14 Page 3 of 5



        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.

        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 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 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 influenza vaccination administered on September 16,

2009, and/or the Hepatitis B vaccination administered on September 25, 2009, as alleged by

petitioner in a petition for vaccine compensation filed on or about December 21, 2011, in the

United States Court of Federal Claims as petition No. 11-892V.

        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
          Case 1:11-vv-00892-UNJ Document 40 Filed 01/06/14 Page 4 of 5



       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 influenza vaccine and/or the Hepatitis B

vaccine caused petitioner to develop transverse myelitis, 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

/
/
/
/
/
/
/
/
/
/


                                                  4
Case 1:11-vv-00892-UNJ Document 40 Filed 01/06/14 Page 5 of 5
