# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-340V (not to be published) * * * * * * * * * * * * * * * * * * * * * * * * *

KIM DUGUAY , Petitioner,

v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Filed: September 22, 2022

Decision by Stipulation; Damages; Influenza (“Flu”) Vaccine; Dermatomyositis

.

Verne E. Paradie, Jr. , Paradie & Rabasco , Lewiston, ME, for Petitioner Mary Eileen Holmes , U.S. Dep ar t ment of Justice, Washington, DC, for Respondent

DECISION ON JOINT STIPULATION 1

On March 6, 2018 , Kim Duguay (“ Petitioner ”) filed a petition, seeking compensation under the National Vaccine Injury Compensation Program ( “ the Vaccine Program ” ). 2 Pet., ECF No. 1. Petitioner alleges she suffered from dermatomyositis (“DM”) as a result of the influenza (“flu”) vaccination she received on January 29, 2016

. See Stipulation ¶ 2, 4, dated September 22, 2022 (ECF No. 64 ); see also Petition. Respondent denies “ that the flu vaccine caused petitioner to develop DM, any other injury ,

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the Court of Federal Claims’ website in accordance with the E

- Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be avai lable to anyone with access to the internet . As provided by 42 U.S.C. § 300aa

- 12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has four teen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosu re of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the Decision in its present form will be available. Id.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa -10– 34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to se ctions of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.and/or her current condition. ” See Stipulation ¶ 6. Nonetheless, both parties, while maintaining their above

- stated positions, agreed in a stipulation filed Septembe r 22, 2022, that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation. I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation is reasonable

. I therefore adopt it as my decision in awarding damages on the terms set forth therein. The stipulation awards : a lump sum of $ 85,000.00 in the form of a check payable to p etitioner

. Stipulation ¶ 8. This award represents compensation for all damages that would be available under 42 U.S.C. § 300aa- 15(a). I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the C lerk of the Court is directed to enter judgment herewith. 3

IT IS SO ORDERED.

s/ Katherine E. Oler Katherine E. Oler Special Master

3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their right to seek review.1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

KIM DUGUAY ,

Petitioner,

v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. No. 18

- 340V Special Master Oler ECF

STIPULATION The parties hereby stipulate to the following matters:

1. On March 6, 2018, Kim Duguay (“p etitioner ”) 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 the flu vaccin e on January 29, 2016

. 3. The vaccine was administered within the United States. 4. Petitioner alleges th at s he suffered from dermatomyositis (“DM”) as a result of receiving the flu vaccine

. Petitioner alleges that s he experienced the residual effects of this

condition for more than six months. 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of h er condition.2

6. Respondent denies that the flu vaccine caused peti tioner to develop DM , any other injury , and/ or her current condition. 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 de cision 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 paymen t: A lump sum of $85 ,000.00 in the form of a check payable to petitioner. 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 timely 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 petition.

1 0 . Petitioner and her attorney represent that compensation to be provided pursuant to this Stipulation is not for a ny 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 been 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.3

1 1 . Payment made pursuant to paragraph 8 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.

1 2 . 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 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).

1 3 . In return for the payments described in paragraphs 8 and 9 , p etitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditi onally 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 kin d or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300 aa

- 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 from, or alleged to have resulted from the flu vaccination administered on January 29, 2016 , as alleged by petitioner in a petition for vaccine compen sation filed on or about March 6, 2018 , in

the United States Court of Fe der a l Claims as petition No. 1 8

- 340 V.

1 4 . 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.4

1 5 . If the special master fails to issue a decision in complete conformity with the 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 wit h the terms of this Stipulation, then the parties’ settlement and this Stipulation shall be voidable at the sole discretion of either party.

1 6 . This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under t he 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 to do any act or thing other than is herein expressly s tated 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 na ture of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement.

1 7 . This 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 to suffer from

DM , or any other injury or condition.

18 . All rights and obligations of petitioner hereunder shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

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