# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16 - 1067 V Filed: March 15, 2018 UNPUBLISHED

KIM LAFOUNTAINE , Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Special Processing Unit (SPU); Joint Stipulation on Damages; Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA)

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA , for petitioner. Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION 1 Dorsey , Chief Special Master: On August 26, 2018 , p etitioner 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 suffered l eft shoulder injuries as a result of her October 15, 2015 tetanus

- diphtheria

- acellular pertussis ( “ Tdap ” ) vaccination

. Petition at 1 ; Stipulation, filed March 15, 2018 , at ¶ 4. Petitioner further alleges t hat she experienced residual effects of her condition 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 . Petit ion at 3 ; Stipulation at ¶¶ 4-5

. “ Respondent denies that the Tdap immunization is the cause of petitioner ’ s alleged shoulder injuries or any other injury or condition. ” Stipulation at ¶ 6. Nevertheless, o n March 15, 2018, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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). 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.

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 ).2 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 term s stated in the attached Stipulation , the undersigned award s the following compensation:

A lump sum of $6 5,000.00 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 42 U.S.C. § 300aa

- 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.IN THE UNITED STATES CO URT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

KIM LAFOUNTAINE, Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. ) ) ) ) ) ) ) ) ) ) No. 16-1067V Chief Special Master Dorsey ECF

STIPULATION The parties hereby stipulat e to the following matters: 1. Kim LaFountaine, 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 inju ries 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. § 100.3(a). 2. Petitioner received the Tdap vaccination on October 15, 2015.

3. The vaccine was administered within the United States. 4. Petitioner alleges that she suffered left shoulder injuries as th e result of the Tdap vaccination and that she experien ced the residual effects of thes e conditions for more than six

months. 5. 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. 6. Respondent denies that the Tdap immuni zation is the cause of petitioner’s alleged shoulder injuries or any ot her injury or condition.2 7. Maintaining their above-stated positions, the parties nevertheless now agree that the

issues between them shall be settled and th at a decision should be entered awarding the compensation described in paragr aph 8 of this Stipulation. 8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, a nd after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secret ary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $65,000.00, 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 prope r and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(1), and an application, the pa rties will submit to further proceedings before the special master to award reas onable attorneys’ fees and costs incurred in proceeding upon this petition. 10. Petitioner and her 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 been made or can reasonably be expected to be made under a ny State compensation programs, in surance 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. § 300aa15(i), subject to the availability of sufficient statutory funds.3 12. The parties and their attorn eys further agree and stipulat e that, except for any award for attorneys’ fees and litigation costs, the mone y provided pursuant to this Stipulation will be

used solely for the benefit of petiti oner, as contemplated by a stri ct construction of 42 U.S.C. § 300aa-15(a) and (d), and subj ect 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, administrators, successors or assigns, does forever irrevocably and uncondi tionally release, acquit and di scharge the United States and the Secretary of Health and Human Services from any and all actions, caus es 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 Federal Claims, under the Nati onal 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 petiti oner resulting from, or alleged to have resulted from, the Tdap vacci ne administered on or about October 15, 2015, as alleged by petitioner in a petition for vacci ne compensation filed on August 26, 2016, in the United States Court of Federal Claims as petition No. 16-1067V. 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 d ecision in complete conformity with the terms of this Stipulation or if the Court of Federal Cl aims fails to enter judgmen t in conformity with a decision that is in complete conformity with th e terms of this Stipulation, then the parties’ settlement and this Stipulation shall be voida ble at the sole discre tion of either party.4 16. This Stipulation expresses a full and comp lete negotiated settleme nt 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 to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand th at the award described in this stipulation may reflect a compromi se of the parties’ respective pos itions 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 vacci ne caused petitioner’s alleged shoulder injuries or any other in jury or her cu rrent condition. 18. All rights and obligations of petitioner hereunder shall apply e qually to petitioner’s heirs, executors, administrators , successors, and/or assigns.

END OF STIPULATION