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

## * * * * * * * * * * * * * * * * * * * * * ROBERT KAPER , * No. 13

- 504V * Special Master Christian J. Moran Petitioner, *

* Filed: August 20 , 0214 v. * * SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine; AND HUMAN SERVICES, * Guillain

- Barré syndrome (“GBS”). * Respondent. * * * * * * * * * * * * * * * * * * * * * * Lawrence R. Cohan , Anapol, Schwartz, et al., Philadelphi a, PA , for P etitioner; Jennifer L. Reynaud , U. S. Dep’t of Justice, Washington, DC , for R espondent. UNPUBLISHED DECISION 1 

## On August 18, 2014 , respondent filed a joint stipulation concerning the petition for compensation filed by Robert Kaper on June 24, 2013 . In h is petition, petitioner alleged that the influenza vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C .F.R. §100.3(a), and which he received on November 9, 2011 , caused h im to suffer Guillain

- Barré Syndrome (“GBS”). 2 

## Petitioner further alleges that he suffered the residual effects of this injury for more than six months. Petitioner represents that there has been no prior award or settlement of a civil action for damages on his behalf as a result of her condition. R espondent denies that petitioner's alleged GBS and residual effects were

1 

### T he 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 parties have 14 days to file a motion proposing redaction of medical inf ormation 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.

2 

### The petition identifies the d ate of vaccination as November 10, 2011 , but th e medica l records confirm tha t November 9, 2011 , is the correct date of vaccination.

## caused

- in

- fact by the flu vaccine. Respondent further denies that the flu vaccine

caused petitioner any other injury or his current condition. Nevertheless, the parties agree to th e 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 l ump sum payment of $160,000.00 in the form of a check payable to Robert Kaper . 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, Appen dix B, the clerk is directed to enter judgment in case 13

- 504V according to this decision and the attached stipulation. 3 

## Any questions may be directed to my law clerk, Mary Holmes, at (202) 357

- 6353. IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master

3 

### 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.

### Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS
ROBERT KAPER, Petitioner,


### v. No. 13 -504V Special Master Moran 

### ECF SECRETARY OF HEALTH AND 

### HUMAN SERVICES, Respondent.

STIPUJ.,ATION The po1tie s hereby sti pul ate to th e fo llowing mat1ers: l. Robert Kaper ("petitioner"), filed a petition for vaccine compensation under the National Vaccine Inju ry Compensation Program, 42 U.S.C. § 300aa- 10 to 34 (the "Vaccine Program")
. The petition seeks compensation for injuries allegedly re lated to petitione1"s receipt of an influenza ("flu") vaccine , which vaccine is contai n ed in the Vaccine Injury Table (the "Tab l e"), 42 C.F.R. 

### § 100 .3 (a)
. 2. Petitioner received his flu immunization on November 9, 20 11
. 1 3
. The vaccine was administered within the United States. 4
. Petitioner alleges that he sustained a vaccine-related injury d i agnosed as Gui Il a in-Barre Synd r ome ("OBS") that was caused-in-fact by the flu vaccine
. He further alleges that he experienced the residual effects of hi s injury for more than six months
.

1 The petition identifies the dntc of vac c inati o n as November 10, 20 I I, but t h o medical records confirm tlia t November 9, 20 I I, is the correc t date of vaccination.

### Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 2 of 5

5. Petitioner represents that there ha s been n o pri o 1 · award or se ttl emen t of a civil act ion for dam ages as a r es ult of hi s co ndi tio n. 6. R espo ndent deni es that peti tioner 's a lleg e d GBS and residual effects were
ca u se d

- in-fa ct by the flu vaccine. Respondent further denie s that the flu vac c in e caused petitioner any o ther i1tjury o r hi s current condition. 7. Mnintaining their above-stated positions, 1hc partie s nevetthel ess now agree th a t the issues b etween them s hal! be se ttled and that a deci s i o n s h o uld be entered awarding the
com p e n sa tio n described in paragr ap h 8 of this Stipulation. 8. As soo n as pra c tic a ble after an entry of judgment reflecting a d ec ision consistent with the t erms of**t~is** Stipulation , and after petitioner h as filed an election t o r eceive compensation p ursu a nt to 42 U.S.C. § 300aa-2 1 (a)(l), th e Secretary of Health a nd Human Services will i ss ue the following vaccine co mp e n sa ti o n pa yment: A lu mp s um of $ 160,000 . 00 in the fo rm of a check payab l e to petitioner
. This am · ount repre se nts compensation for all d a mage s that would be available under 42 U
. S .C. § 300aa -J 5(a). 9. As soon a s practicable afte r the e ntry of ju dgment on e n t itl e ment in th i s case, and after petitioner ha s filed both a proper a nd timely e l ection to re ce i ve co mpen sat i o n pur s uan t to 42 U .S.C
. § 300aa-2 l( a)( I), and an application, th e parties will submit t o furth er proceeding s b efore the spec i a l master t o award reasonable attorney s ' fees a nd costs incu rred in p roceed ing upon th i s petition
. l 0. P et itioner and hi s att o m ey repre sent th a t co mpensa t i on to be provided pursuant to this Sti pulati o n is not for any item s or services fo r w hi c h the Program i s not primarily liable under 42 U .S.C
. § 300aa -l 5(g), t o the extent that p ay m en t h as been m a d e or c an r easona bly b e expected to
2

### Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 3 of 5

be made und e r any Stat e compensation programs , in s uranc e policie s , Federal or State health benefits programs (other than Titl e XIX of the Social Secur i ty Act (42 U.S .C. 

### § 1396 et seq.)), or by entitie s that provid e health service s on a pre-paid basi s. 11. Payment s made pur s uant to para g raph s 8 and 9 of thi s St i pu l ation wil l be made in accordance with 42 U .S.C. 

### § 300aa- l 5(i) , subject to the availability of sufficient s tatutory f unds. 12. The parties and their attorneys further agree and stipu lat e that , except for any award for attorneys ' fees, l iti gat i on costs , and past unreimbursable expenses, the money provided pursuant t o this Stipulation w ill be u sed so lel y for the benefit of petitioner as contemp l a t ed by a strict con s truction of 4 2 U.S.C. 

### § 300aa- l 5(a) and (d) , and s ubject to the conditions of 42 U.S.C. 

### § 300aa-15(g) and (h). 1 3. In return for th e payment s de sc ribed in paragraphs 8 and 9 , petitioner , in his individual capac it y, and on behalf of his heirs , executors , adm ini s tr ators, successors or assigns, does forever irrevocabl y and unconditionally r e l ease, acquit and discharge th e United State s and the Secretar y of Health and Human Services from any and a ll actions or cause s of action (inc l uding agreements, judgment s , claims , damage s, los s of se rvices, expenses and a ll demands of whatever kind or nature) that ha ve b ee n brou g h t , cou l d ha ve been brought , or cou l d be timely brought in the Cou11 of Federal C laim s, under th e Nationa l Vaccine Injury Compe n sat i on Program , 42 U.S.C. 

### § 300aa-10 e t seq., on acco unt of, or in any way grow ing out of, any and all known or unknown, suspected or un s uspected p e rsonal injurie s to or death of petition e r re s ulting from, or alleged to have resu lt e d from a flu vaccination administered on or about November 9 , 20 11 , as alle ge d b y petitioner in a petition for vacc ine compensation filed on or about Jul y 2 4 , 2 01 3, in the United States Cou rt of Federal C laim s a s p e tition No. 1 3-5 04V.


### 3

### Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 4 of 5

14. If petitioner sh?uld 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 s pecial ma s ter fails t o i ssue a decision in complete confonn ity with the term s of this Stipulation or if the Coutt of Federal Claims fails to enter judgment in conformity with a decision that is in com pl e te confo rmity wi th the terms of this Stipul a ti on, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either · party. 16
. This Stipulation expresses a full and co mplete ne gotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except
as otherwise n o t e d in paragraph 9 above. There is absolutely no ag1-eement on the part of the parties hereto to make any payment or to d o any act or thing other than is herein express . Jy stated
a nd clearly agreed to. The p ar ties further agre e and understand that the award described in thi s Stipulation may reflect a compromise of the parties' respective positions as to liability and/or
a m ou nt of damages, and further, that a c hange in the nature of th e injury or condition or in the items of compensation sought, i s not grounds to modify or revi se this agr e e ment. 

### 17. Thi s Stipulation s hall not b e co nstru ed as an admi ss i o n by the United States or the Secretal'y o f Health and Human Service s that the flu vaccine caused petitioner to suffer OBS or any ot h e r injuries.

18. All rights and ob ligation s of petitioner hereunder shall apply equally to petitioner's he i rs, executors, administrators, successors, a nd

/or assigns. E ND OF STIPULA T ION

4

### Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 5 of 5

Respectfully submitted, PETITIONER:



### Anapol Schwartz 1710 Spruce Street CORD FOR



### Philadelphia, PA 19103 (215) 790-4567

AUTHORIZED REPRESENTATIVE OF THE SECRET Y F HEAL TH ANDH VICE:


### USTON, M.D., M.P.H, PAAP Acting Director, Division of Vaccine lnjury Compensation (DVIC) Acting Director, Countenneasures Injury Compensation Program (CICP) Healthcare Systems Bureau U .S
. Department of Health 

### and Human Services 5600 Fishers Lane Parklawn Building, Mail Stop 11 C-26 Rockville, MD 20857
Dated:

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### 201 

# j 5 AUTHORIZED REPRESENTATIVE OF THE ATTORNEY GENERAL:

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# lrf-4~**·** vmc fulr 

# fuA T ANOSKI Deputy Director 

### Torts Branch Civil Division U
. S
. Department of 

### Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 1 ATl'ORNEYOFRECORDFOR RESPONDENT:

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### Attorney Torts Branch Civil Division U .S
. Department of 

### Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 (202) 305-1586