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

*********************
CHARLENE MACOMBER,       *
                         *                           No. 13-980V
             Petitioner, *                           Special Master Christian J. Moran
                         *
v.                       *                           Filed: November 19, 2015
                         *
SECRETARY OF HEALTH      *                           Stipulation; influenza (“flu”)
AND HUMAN SERVICES,      *                           vaccine; hypotensive episode and
                         *                           encephalopathy.
             Respondent. *
*********************

David C. Richards, Christensen and Jensen, P.C., Salt Lake City, UT, for
Petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
Respondent.

                              UNPUBLISHED DECISION1

       On November 18, 2015, respondent filed a joint stipulation concerning the
petition for compensation filed by Charlene Macomber on December 12, 2013. In
her petition, Ms. Macomber alleged that the influenza (“flu”) vaccine, which is
contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and
which she received on September 12, 2011, caused her to suffer from a
hypotensive episode and encephalopathy, and that she experienced symptoms of
the injury for more than six months. Petitioner represents that there has been no
prior award or settlement of a civil action for damages as a result of her alleged
injuries.


       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 party has 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.
       Respondent denies that the flu vaccine either caused or significantly
aggravated petitioner’s alleged injury or any other injuries, and denies that
petitioner’s current disabilities are the result of a vaccine-related 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 decision of the Court in awarding damages, on the terms set forth therein.

        Damages awarded in that stipulation include:

        A lump sum of $75,000.00 in the form of a check payable to petitioner,
        Charlene Macomber. 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 13-980V according to this decision
and the attached stipulation.2

        Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357-
6360.

        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.

                                                2
                  IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                            OFFICE OF SPECIAL MASTERS

                                                  )
CHARLE E MACOMB ER,                               )
                                                  )
                      Petitioner,                 )       No. I 3-980V    ECF
                                                  )
                 V.                               )      Special Master Moran
                                                  )
SEC RETARY OF HEALTH                              )
AND HUMAN SERVICES,                               )
                                                  )
     Respondent.                                  )
__________       ____ )
                                             STIPULATION

        The parties hereby stipulate to the fo llowing matters:

         I.   Petit ioner, Charlene Macomber, filed a petition for vaccine compensation under the

National Vaccine Inj ury Compensation Program, 42 U.S.C. §§ 300aa- I0 to 34 (the " Vaccine

Program"). The petition seeks compensation for injuries alleged ly related to petitioner' s rece ipt

of the infl uenza ("fl u'") vaccine, which is contai ned in the Vaccine Injury Tab le (the ·Table'"), 42

C. F.R. § I00.3(a).

        2.    On September 12, 20 I I, petitioner received the flu vacci ne.

        3. The flu vaccine was admini stered within the United States.

        4.    Petitioner all eges that, as a result of receiving the flu vaccine, she suffered from a

hypotens ive episode and encephalopath y, and that she experienced symptoms of the injury for

more than six months.

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

fo r damages as a result of her all eged inj uries.
         6.     Respondent den ies that the nu vaccine either caused or significantl y aggravated

 petitioner's alleged inju ry or any other injuries, and deni es that petitio ner's current disabi l ities

are th e result o f a vacc ine-related injury.

         7.     Maintaining their above-stated positions, the parti es neverth eless now agree that the

issues between them shal I be settled and that a deci sion should be entered award in g the

compensatio n described in paragraph 8 o f th is Stipu lati on.

         8.     A s soon as practicable after an entry of judgment reflecting a decision consistent

with the terms of thi s Stipulation, and after petitioner has filed an electi on to receive

compensation pursuant to 42 U.S.C. § 300aa-2 I (a)( I ), the Secretary o f H ea lth and 1l uman

Serv ices w ill issue the following vacc ine compensation payment:

                   A lump sum of$75,000.00, in the form o f a check payable to petitioner. This
                   amount represents com pensat ion for al I dam ages that wo uId be ava ilable under 42
                   U.S.C. § 300aa- l 5(a).

        9.      As soon as practicable after the entry o f judgment on entitlement in th is case, and

after petitioner has fi led both a proper and tim ely election to receive co mpensation pursuant to

42 U .S.C. § 300aa-2 I (a)( I ), and an application, the parties w ill subm it to fu rther proceedings

before the special master to award reasonable attorn eys· fees and costs incurred in proceeding

upon thi s petition.

         I 0.    Petitioner and her attorn ey represent that compensation to be provided pursuant to

thi s Stipul ation is not for any item s or serv ices for w hi ch the Program is not prim aril y l iab le

under 42 U.S.C. § 300aa- I 5(g), to the extent that payment has been made or can reasonably be

expected to be made under any State compensatio n programs, insurance po licies, Federal or

State health benefits program s (other than T itle X IX o f the Social       ecurity A ct (42 U . .C. § 1396

et seq.)), or by entities that provide hea lth serv ices on a pre-paid basis.

                                                      2
          11.    Payment made pursuant to paragraph 8 of this Stipulation, and any amounts

 awarded pursuant to paragraph 9 of thi s Stipul ation, will be made in accordance with 42 U.S.C.

 § 300aa- I 5( i), subj ect to the availabi Iity of suffi cient statutory funds.

         12.    The parties and their attorneys furth er agree and stipul ate that, except fo r any award

 fo r attorneys' fees and litigation costs, the money provided pursuant to this Sti pulation will be

 used so lely for the benefit of petitioner, as contemplated by a strict construction of 42 U.S.C.

§ 300aa-1 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 paragraph s 8 and 9, petitioner, in her

 indi vidual capacity and on behalf of her heirs, executors, admin istrators, successors or assigns,

does fo rever irrevocably and unconditionall y release, acquit and discharge the United States and

the Secretary of Health and Human Services from any and all actions, causes of acti on (inc luding

agreements, judgments, claims, damages, loss of services, ex penses and all demands of whatever

kind or nature) that have been brou ght, could have been brought, or coul d be timely brought in

the Court of Federal Claims, under the ational Vaccine Injury Cor pcnsat ion Program, 42

U.S.C. § 300aa- I0 et seq. , on account of, or in any way growing out of, any and all known or

unknown, suspected or unsuspected personal inj uries to or death of petitioner resulting from, or

alleged to have resulted from, the flu vacc ine admini stered on September 12, 20 11, as alleged by

petitioner in a petition for vaccine compensation fil ed on or about December 12, 20 13, in the

United States Court o f Federa l Claims as petition o. 13-980V.

        14.     If petitioner should di e prior to entry of judgment, thi s agreement shall be voidabl e

upon pro per notice to the Court on bchal f of either or both of the parties.

        15.     If the special master fail s to issue a decision in comp lete confo rmity with the terms

of this Sti pulation or if the Court of Federal Claims fa ils to enter j udgment in conform ity with a

                                                       3
dec ision that is in complete conform ity w ith the term s or this Stipu lation, then the parties'

settlement and th is Sti pu lat ion shall be vo idable at the sole di scretion or either party.

        16.   This Stipulation expresses a full and complete negotiated settlement o f li ability and

dam ages claimed under the National Childhood Vacc ine Injury Act or 1986, as amended, except

as otherw ise noted in paragraph 9 above.       There is absolutely no agreement on the part o f the

parties hereto to make any payment or to do any act or thing other than is herein expressly stated

and clearl y agreed to.    The parti es further agree and understand that the award descr ibed in thi s

stipu lation may reflect a compromise o f the parties' respective positions as to liabil ity and/or

amount or damages, and further, that a change in the nature of the injury or conditi on or in the

items o f compensation sought, is not grounds to modify or rev ise this agreement.

        17.   Th is Stipulation shall not be construed as an admi ssion by the United States or the

Secretary of Health and Human Services that the flu vaccine received by petitioner either caused or

significantly aggravated petitioner"s al leged inj ury, or any other injury or disability.

        18.   A ll rights and ob ligations of peti tioner hereunder shall apply eq uall y to petitioner's

heirs, executors, admini strators, successors, and/or assigns.

                                       EN D OF STI PULATI ON




                                                     4
  Respectfully submitted,

  PETITIONER:



 ~~.~
  CHARLENE MACOMBER

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



 Q  7~~
 ~WtIARDS ;S:"
  257 East 200 South, Suite 11 00             Deputy Director
  Salt Lnke City, UT 8411 I                   Torts Branch
  (80 I) 323-5000                             Civi l Division
                                              U.S. Department of Justice
                                              P.O. Box 146
                                              Benjamin Franklin Stution
                                              Washington, DC 20044-0146

  AUTHORIZED REPRESENTATIVE                   ATTORNEY O F RECORD FOR
  OF THE SECRET ARY OF IlEALTR                RESPONDENT:
  AND HUMAN SERVICES:




[bfA. MELTSSA HOUSTON;M:b:,.P.II, PAAP
                                              ~
                                              DARRYL R. WISHARD
 Director, Division oflnjury                  Senior Trial Attorney
   Compensation Programs (DICP)               Torts Branch
 Healthcare Systems Bureau                    Civil Division
 U.S . Depa1tmcnt of Health and               U.S. Depaitment of Justice
   Human Services                             P.O. Box 146
 5600 Fishers Lane                            Benjamin Frnnklin Station
 Parklawn Building, Mai l Stop l l C-26       Washington, DC 20044-0146
 Rockville, MD 20857                          (202) 616-4357


 Dated:    / I { ( 13{ (
                       cJ

                                          5
