# Agard v. Secretary of Health and Human Services > United States Court of Federal Claims · May 11, 2021 URL: https://www.frixlaw.com/law-library/cases/4686014 ## Case - **Court:** United States Court of Federal Claims - **Decided:** May 11, 2021 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Brian H. Corcoran - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment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/4686014 ## Opinion text In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-185V UNPUBLISHED CHRISTOPHER AGARD, Chief Special Master Corcoran Petitioner, Filed: April 7, 2021 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Tetanus HUMAN SERVICES, Diphtheria acellular Pertussis (Tdap) Vaccine; Cellulitis Respondent. Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner. Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 On January 31, 2019, Christopher Agard 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 he suffered cellulitis and other complications as a result of a Tetanus-Diphtheria-acellular-Pertussis (“Tdap”) vaccine administered on February 6, 2018. Petition at 1; Stipulation, filed on April 6, 2021, at ¶¶ 1-2, 4. Petitioner further alleges that the vaccine was administered within the United States; that he suffered the residual effects of his injury for more than six months; and that there has been no prior award or settlement of a civil action for damages on his behalf as a result of his condition. Petition at 1-2, 10; Stipulation at ¶¶ 3-5. “Respondent denies that the Tdap vaccine caused petitioner’s alleged cellulitis or any other injury and further denies that his current disabilities are a sequela of a vaccine-related injury.” Stipulation at ¶ 6. 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). 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, I agree that the identified material fits within this definition, I 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). Nevertheless, on April 6, 2021, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $95,000.00 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 Section 15(a). Id. I approve 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/Brian H. Corcoran Brian H. Corcoran 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 CHRISTOPHER AGARD, Petitioner, v. No. 19-185V Chief Special Master Corcoran SECRETARY OF HEALTH AND SPU HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: I. Petitioner, Christopher Agard, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-I0 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of the Tetanus-Diphtheria-acellular-pertussis ("Tdap") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § I 00.3 (a). 2. Petitioner received a Tdap vaccine on or about February 6, 2018. 3. The vaccine was administered within the United States. 4. Petitioner alleges that he suffered cellulitis and significant complications as a consequence of the Tdap immunization he received on or about February 6, 2018, and further alleges that he suffered 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 on his behalf as a result of his condition. Page I of 5 6. Respondent denies that the Tdap vaccine caused petitioner's alleged cellulitis or any other injury and further denies that his current disabilities are a sequela of a vaccine-related 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)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $95,000.00, in the form of a check payable to petitioner, representing 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-2l(a)(l), 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 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 entities that provide health services on a prepaid basis. Page 2 of 5 I I. 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-I 5(i), subject to the availability of sufficient statutory funds. I 2. The parties and their attorneys further agree and stipulate that, except for any award for attorney's 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- I 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h). I 3. 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, 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, 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 United States Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-I 0 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 February 6, 20 I 8, as alleged by petitioner in a petition for vaccine compensation filed on or about January 3 I, 20 I 9 in the United States Court of Federal Claims as petition No. 19-185V. 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 United States Court of Federal Claims fails to enter judgment in Page 3 of 5 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. 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 petitioner's alleged cellulitis or any other injury or any of his current disabilities. 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 ATTORNEYOFRECORDFOR AtJTHORlZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: ~ JEFFREYS. POP & ASSOCIATES .MJ ~Qed/.4,/v--.... HEATHER L. PEARLMAN Acting Deputy Director 9150 Wilshire Blvd Torts Branch Suite 241 Civil Division Beverly Hills, CA 90212 U. S. Department of Justice (310) 273~5462 P.O.Box 146 Benjamm Franklin Station Washington. D.C. 20044-0146 AUTBORJZED REPRESENTATIVE OF ATfORNEYOFRECOlWFOR THE SECRETARY OF HEALTH AND RESPONDENT: RUMAN SERVICES: H~/~, ~~~~ ~ ~~~ L ~ - e _ ~ TAMARA OVERBY MALLORI B. OPENCHOWSKI Acting Director, Division of Trial Attorney lnjury Compensation Programs (DICP) Torts B1uoh, Civil Division Healthcare Systems Bureau U.S. Department of Justice Health Resources aud Services Administration P.O. Box 146 U.S. Department of Health Benjamin F{&D}din Statton and Human Services Washington,. D.C. 20044-0146 5600 Fisbm Lane 08N 146B Tel: (202) 305-0660 Rockville, MD 20857 mallori.b.openchowski@usdoj.gov Dated: ~ /-z3 lzoz I Page S of5 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4686014. Public record. Not legal advice.