# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15

- 220 V

Filed: August 27 , 2015 Unpublished

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

DOROTHY KEEGAN

, *

*
Petitioner, * Joint Stipulation on Damages ;

* Tetanus

- Diphtheria

- acellular Pertussis

* (Tdap) Vaccine ; Shoulder Injury Related

SECRETARY OF HEALTH * to Vaccine Administration (SIRVA);

AND HUMAN SERVICES, * Special Processing Unit

* Respondent. *

*

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

Diana Stade lnika s Sedar , Esq., Maglio Christopher & Toale, PA

, Sarasota, FL , f or petitioner.

Christine Becer

, Esq. , US Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION 1

Vowell

, Chief Special Master:

On March 4, 2015

, Dorothy Keegan filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq

. , 2 [ the “Vaccine Act” or “Program”]. Petitioner alleges that s he suffered a shoulder injury resulting from the tetanus

- diphtheria

- acellular pertussis [“Tdap”] vaccine she received on October 11, 2013 . Petit ion

, ¶¶ 1

, 9, 11 ; see also Stipulation , filed Aug. 27 , 2015, ¶ ¶
2, 4

. Petitioner further alleges that s he expe rienced the residual effects of her injury for

more than six months and conti nues to suffer from shoulder pain. Petition

, ¶¶ 9, 12

.

“ Respondent denies that the Tdap vaccine caused petitioner to suffer a shoulder injury or any other injury. ” Stipulation

, ¶ 6.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I inte nd to post it on the United States Court of Federal Claims' website, in accordance with the E

- Government
Act of 2002, Pub. L. No. 107

- 347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)) . In accordance with Vaccine Rule 18(b), petitioner has 14 day s 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 withi n this definition, I will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 St at. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2006).2

Nevertheless, the parties have agreed to settle the case. Stipulation, ¶ 7. On August 27 , 2015 , the parties filed a joint stipulation agreeing to settle this case and describing the settlement terms.

Respondent agrees to pay petitioner a lump sum of $ 42 ,0 00.00 in the form of a check payable to petitioner. Stipulation, ¶ 8. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa

- 15(a). Id

.

I adopt the parties’ stipulation attached hereto, and award compensation in the

amount and on the terms set forth therein . 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

s/Denise K. Vowe ll

Denise K. Vowell

Chief Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________ )

DOROTHY KEEGAN

, )
)
)

Petitioner, )
) No. 15

- 220 V

v. ) Chief Special Master Vowell
) ECF

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )
) Respondent. )
____________________________________)

STIPULATION

The parties hereby stipulate to the following matters:

1. Dorothy Keegan

, petitioner, 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 a tetanus, di phtheria, and acellular pertussis (“Tdap”) vaccine, which vaccine is contained in

the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).

2. Petitioner received h er Tdap immunization on October 11, 2013

.

3. The vaccination was administered within the Un ited States.

4. Petitioner alleges that s he su ffered a shoulder injury as a result of receiving the Tdap

vaccine

.

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

for damages on h er behalf as a resul t of h er condition.

6. Respondent denies that the Tdap vaccine caused petitioner to suffer a shoulder injury

or any other injury

.2 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 $ 42,0 00 .00 in the form of a check payable to p etitioner. 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 t imely 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 pet ition.

10. Petitioner and h er 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 be en 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.

§ 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.3 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 us ed 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, petitio ner, in h er

individual capacity, and on behalf of h er heirs, executors, administrators, successors or 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 Court of Fe deral 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

fr om, or alleged to have resulted from, the Tdap vaccination administered on October 11, 2013

,

as alleged by petitioner in a petition for vaccine compensation filed on or about March 4, 2015

,

in the United States Court of Federal Claims as petition No. 15

- 22 0 V.

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 th e 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 th e sole discretion of either party.4 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 abo ve. 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

St ipulation 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 to suffer a

shoulder injury or any other injury.

18. All rights and ob ligations of petitioner hereunder shall apply equally to petitioner’s

heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

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