        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-512V
                                   Filed: November 19, 2015
                                        UNPUBLISHED

****************************
SUSANA GONZALES-SEXAUER,              *
                                      *
                   Petitioner,        *       Joint Stipulation on Damages;
                                      *       Tetanus, Diphtheria and Pertussis
                                      *       (Tdap) Vaccine; Brachial Neuritis;
SECRETARY OF HEALTH                   *       Attorneys’ Fees and Costs; Special
AND HUMAN SERVICES,                   *       Processing Unit (“SPU”)
                                      *
                   Respondent.        *
                                      *
****************************
Andrew Donald Downing, Van Cott & Talamante, PLLC, for petitioner.
Gordon Elliot Shemin, U.S. Department of Justice, Washington, DC, for respondent.

                              DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

       On May 18, 2015, 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 suffered brachial neuritis as a result of a tetanus,
diphtheria, acellular pertussis (“Tdap”) vaccine she received on November 14, 2014.
Petition at 10; Stipulation at 1, filed 11/19/2015, ¶ 4. “Respondent denies that the Tdap
immunization caused any injury to petitioner.” Stipulation, ¶ 6.

       Nevertheless, on November 19, 2015, the parties filed the joint stipulation
(attached hereto as Appendix A), 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.

        The parties stipulate that petitioner shall receive the following compensation:
1
  Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended
at 44 U.S.C. § 3501 note (2006)). 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.
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).
                                                       1
        a. A lump sum of $1,112.05, which represents reimbursement of a State of
           New Mexico Medicaid lien, in the form of a check payable to petitioner
           and

            Health Care Service Corporation
            25552 Network Place
            Chicago, IL 60673-1255

            Petitioner agrees to endorse this payment to the State; and

        b. A lump sum of $90,000.00 in the form of a check payable to petitioner.
           Stipulation, ¶ 8(b). This amount represents compensation for all items of
           damages that would be available under 42 U.S.C. § 300aa-15(a). Id.

        c. A lump sum of $15,328.95, in the form of a check payable jointly to
           petitioner and petitioner’s attorney, Andrew D. Downing, for attorneys’
           fees and costs available under 42 U.S.C. § 300aa-15(e). In compliance with
           General Order #9, petitioner incurred no out-of-pocket litigation expenses in
           proceeding on the petition.

      The undersigned approves the requested amount. 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


                                    )
SUSANA GONZALES-SEXAUER,            )
                                    )
            Petitioner,             )                  No. 15-512V
                                    )                  Chief Special Master Dorsey
      v.                            )                  ECF
                                    )
SECRETARY OF HEALTH AND             )
HUMAN SERVICES                      )
                                    )
            Respondent.             )
____________________________________)

                                            STIPULATION

       The parties hereby stipulate to the following matters:

       1. 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 the Tetanus,

Diphtheria and Pertussis (“Tdap”) vaccine, which is a vaccine contained in the Vaccine Injury

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

       2. Petitioner received her Tdap vaccination on or about November 14, 2014.

       3. The vaccine was administered within the United States.

       4. Petitioner alleges that the Tdap vaccine caused her to develop brachial neuritis, and

that she experienced the 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 her condition.

       6. Respondent denies that the Tdap immunization caused any injury to petitioner.




                                              Page 1 of 5
       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 payments:

       a.      A lump sum of $1,112.05, which represents reimbursement of a State of New
               Mexico Medicaid lien, in the form of a check payable to petitioner and

                       Health Care Service Corporation
                       25552 Network Place
                       Chicago, IL 60673-1255

               Petitioner agrees to endorse this payment to the State; and

       b.      A lump sum of $90,000.00 in the form of a check payable to petitioner. This
               amount represents compensation for all remaining items of damages that would
               be available under 42 U.S.C. § 300aa-15(a); and

       c.      A lump sum of $15,328.95 in the form of a check payable jointly to petitioner and
               petitioner’s attorney, Andrew D. Downing, for attorneys’ fees and costs available
               under 42 U.S.C. § 300aa-15(e). In compliance with General Order #9, petitioner
               incurred no out-of-pocket litigation expenses in proceeding on the petition.

       9. 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-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 by entities that provide health services on a pre-paid basis.

       10. Payments made pursuant to paragraph 8 of this Stipulation will be made in

accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds.



                                              Page 2 of 5
       11. 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-15(g) and (h).

       12. In return for the payments described in paragraph 8, petitioner, in her individual

capacity, and on behalf of her 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 November 14, 2014

as alleged by petitioner in a petition for vaccine compensation filed on or about May 18, 2015 in

the United States Court of Federal Claims as petition No. 15-512V.

       13. 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.

       14. 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.



                                              Page 3 of 5
       15. This Stipulation expresses a full and complete negotiated settlement of liability and

damages claimed under the National Childhood Vaccine Injury Act of 1986. 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.

       16. 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 any injury to petitioner.

       17. 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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