        In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                            No. 11-117V
                                      Filed: February 2, 2016

* * * * * * * * * * * * * * * *                                UNPUBLISHED
BEDFORD BOYLSTON,             *
                              *                                Special Master Gowen
          Petitioner,         *
                              *                                Joint Stipulation on Damages;
v.                            *                                Influenza (“Flu”) Vaccine;
                              *                                Encephalitis.
SECRETARY OF HEALTH           *
AND HUMAN SERVICES,           *
                              *
          Respondent.         *
                              *
* * * * * * * * * * * * * * * *

Renee Ja Gentry, Shoemaker, Gentry & Knickelbein, Vienna, VA, for petitioner.
Ann D. Martin, United States Department of Justice, Washington, DC, for respondent.

                            DECISION ON JOINT STIPULATION1

        On February 25, 2011, Bedford Boylston (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioner
alleged that as a result of receiving an influenza (“flu”) vaccination on December 15, 2008 and
September 25, 2009, he suffered encephalitis and/or the significant aggravation of encephalitis.
Stipulation for an Award at ¶ 2, 4, filed Feb. 1, 2016. Further, petitioner alleged that he experienced
residual effects of his injury for more than six months. Id. at ¶ 4.


1
  Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). As provided by Vaccine Rule
18(b), each party has 14 days within which to request redaction “of any information furnished by
that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
2
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.


                                                  1
        On February 1, 2016, the parties filed a stipulation in which they state that a decision should
be entered awarding compensation. Respondent denies that the flu vaccinations caused petitioner’s
encephalitis, the significant aggravation of encephalitis, or any other injury. Id. at ¶ 6.
Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. 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:

       A lump sum of $850,000.00, in the form of a check payable to petitioner, Bedford
       Boylston. This amount represents compensation for all damages that would be
       available under 42 U.S.C. § 300aa-15(a).

       Id. at ¶ 8.

       The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.

         The clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of
the parties’ stipulation.3

       IT IS SO ORDERED.

                                               s/ Thomas L. Gowen
                                               Thomas L. Gowen
                                               Special Master




3
 Pursuant to Vaccine Rule 11(a), entry of judgment is 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

COL. BEDFORD BOYLSTON,        )
                              )
          Petitioner,         )
v.                            )
                              )                      No. 11-117V
SECRETARY OF HEALTH AND HUMAN )                      Special Master Gowen
SERVICES,                     )                      ECF
                              )
          Respondent.         )
                              )

                                          STIPULATION

       The parties hereby stipulate to the following matters:

       1. Petitioner, Col. Bedford Boylston, 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, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R.

§ 100.3(a).

       2. Petitioner received influenza immunizations on December 15, 2008, and September

25, 2009. 1

       3. The vaccines were administered within the United States.

       4. Petitioner alleges that he suffered encephalitis and/or the significant aggravation of

encephalitis as a result of the influenza vaccine(s). Petitioner further alleges that he experienced

residual effects of this condition for more than six months.



1
 On December 15, 2008, petitioner also received anthrax, typhoid, and smallpox vaccinations.
In addition, petitioner received an anthrax vaccine on February 28, 2009. These vaccines are not
contained in the Table, but may be covered under the Countermeasures Injury Compensation
Program (“CICP”). See 42 U.S.C. 247d-6e; 77 Fed. Reg. 13329 (March 6, 2012).
       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.

       6. Respondent denies that petitioner’s influenza vaccine(s) caused encephalitis, the

significant aggravation of encephalitis, 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 $850,000.00 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.



                                                  2
§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.

        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, and past unreimbursed 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).

        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, --

        (a) 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(s)

administered on December 15, 2008, and/or September 25, 2009, as alleged by petitioner in a

petition for vaccine compensation filed on or about February 25, 2011, in the United States Court

of Federal Claims as petition No. 11-117V; and




                                                    3
       (b) waives any and all rights to any compensation that may be available under the

Countermeasures Injury Compensation Program, 42 U.S.C. § 247d-6e (or an action under 42

U.S.C. § 2476d(d)), for a claim alleging that a covered countermeasure, on its own or in

combination with the influenza vaccination(s) administered on December 15, 2008, and/or

September 25, 2009, caused the same injuries that were the subject of the petition for vaccine

compensation filed on or about February 25, 2011, in the United States Court of Federal Claims

as petition No. 11-117V, specifically encephalitis, and/or significant aggravation of encephalitis,

for which petitioner will receive compensation pursuant to this stipulation.

       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.

       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.




                                                  4
       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 caused petitioner to develop

encephalitis, and/or the significant aggravation of encephalitis, 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

/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/
/


                                                  5
