# Dougherty v. Secretary of Health and Human Services > United States Court of Federal Claims · November 21, 2019 URL: https://www.frixlaw.com/law-library/cases/4458070 ## Case - **Court:** United States Court of Federal Claims - **Decided:** November 21, 2019 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Nora Beth Dorsey - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4458070 ## Opinion text In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-1829V Filed: September 19, 2019 UNPUBLISHED PEGGY DOUGHERTY, Petitioner, v. Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza SECRETARY OF HEALTH AND (Flu) Vaccine; Guillain-Barre HUMAN SERVICES, Syndrome (GBS) Respondent. Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner. Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 Dorsey, Chief Special Master: On November 21, 2017, 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 developed Guillain-Barré Syndrome (“GBS”) as a result of an influenza (“flu”) vaccination administered on September 16, 2016. Petition at 1, 3; Stipulation, filed September 18, 2019, at ¶¶ 1-2, 4. Petitioner further alleges that she received the vaccine in the United States, that she experienced the residual effects of this injury for more than six months, and that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition. Petition at 1, 3; Stipulation at ¶¶ 3-4, 6. 1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. This means the decision will be available to anyone with access to the internet. 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. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 2National 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). On September 18, 2019, the parties filed the attached joint stipulation, 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. Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation: A lump sum of $252,000.00 in the form of a check payable to petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under § 15(a). Id. The undersigned approves the requested amount for petitioner’s compensation. 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 PEGGY DOUGHERTY, Petitioner, No. l7-1829V Chief Special Master Dorsey v. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: 1. Petitioner, Peggy Dougherty, 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 ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a). 2. Petitioner received a flu vaccine on or about September 16, 2016. 3. The vaccine was administered within the United States. 4. Petitioner sustained the first symptom or manifestation of onset of Guillain-Barre Syndrome ("OBS") within the time period set forth in the Table, and experienced the residual effects of this injury for more than six months. 5. There is not a preponderance of evidence demonstrating that petitioner's GBS is I due to a factor unrelated to her immunization. Pagel of 5 6. Petitioner represents that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition. 7. Accordingly, petitioner is entitled to compensation for her OBS under the terms of the Vaccine Act. Therefore, 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)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: . A lump sum of $252,000.00 in the form of a check payable to petitioner, representing compensation for all damages 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)(l), and an application, the parties wiU submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. 10. 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-1 S(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 entities that provide health services on a prepaid basis. Page 2 of 5 11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded pursuant to paragraph 9 will be made in accordance with 42 U.S.C. § 300aa-1S(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 o~ 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 her individual capacity, and on behalf of her heirs, executors, administi·ators, successors, and 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, Joss 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 United States 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 gl'owing 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 flu vaccination administered on or about September 16, 2016, as alleged by petitioner in a petition for vaccine compensation filed on or about November 21, 20.17, in the United States Court of Federal Claims as petition No. 17-1829V. 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. Page 3 of 5 15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the _United States 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 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. The Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the flu vaccine caused petitioner's OBS or any other injury or her current condition; however, petitioner has satisfied the Table criteria to establish entitlement to compensation. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION Page 4 of 5 Respectfully submitted, ATI'ORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: . satsl - MAGLIO, CHRISTOPHER & TOALE 1605 Main St. ~ v::- Deputy Director Torts Branch Suite 710 Civil Division Sarasota, FL 34236 U.S. Department of Justice (888) 952-5242 P. 0. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR THE SECRETARY OF HEALTH AND RESPONDENT: HUMAN SERVICES: TAMARA OVERBY Acting Director, Division of MAda~~~~- Trial Attorney Injury CQmpensation Programs (DICP) Torts Branch, Civil Division Healthcare Systems Bureau U.S. Department of Justice U.S. Department of Health P.O. Box 146 and Human Services Benjamin Franklin Station 5600 Fishers Lane Washington, D.C. 20044-0146 Parklawn Building, Stop-0.8Nl46B Tel: (202) 305-0660 Rockville, MD 20857 Dated: 9I18/fMlj r, J Page 5 of S --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4458070. Public record. Not legal advice.