In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-903V
Filed: August 7, 2013
*************************************
ROBERT WAGNON, * UNPUBLISHED
* Special Master Dorsey
Petitioner, *
* Joint Stipulation on Damages;
v. * Influenza Vaccine;
* Guillain-Barré Syndrome (“GBS”)
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*************************************
Anne C. Toale, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Voris Johnson, United States Department of Justice, Washington, DC, for respondent.
DECISION1
On December 12, 2012, Robert Wagnon (petitioner), filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006).
Petitioner alleged that, beginning in December 2011, he began suffering from weakness in his
right foot and difficulty walking. Id. at 1. Petitioner contends that his symptoms and conditions
result from his receipt of the influenza vaccine on November 16, 2011. Id. Petitioner also
alleged that he experienced the residual effects of his injuries for more than six months. Id. at 2.
On August 7, 2013, the parties filed a stipulation, stating that a decision should be entered
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Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, 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)). As provided by
Vaccine Rule 18(b), each party has 14 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
disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule
18(b).
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
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awarding compensation.
Respondent denies that the vaccines either caused or significant aggravated petitioner’s
alleged symptoms, any of her ongoing symptoms, or any other injury. Nevertheless, the parties
agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds the
stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the
terms set forth therein.
The parties stipulated that petitioner shall receive the following compensation:
A lump sum of $150,000.00, 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).
Stipulation ¶ 8.
The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’
stipulation.3
IT IS SO ORDERED.
s/ Nora Beth Dorsey
Nora Beth Dorsey
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
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Case 1:12-vv-00903-UNJ Document 18 Filed 08/07/13 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
ROBERT WAGNON, )
)
Petitioner, )
) No. 12-903V (ECF)
v. ) Special Master Dorsey
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
STIPULATION
The parties hereby stipulate to the following matters:
1. Robert Wagnon (“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 sustained following petitioner’s receipt
of an influenza vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42
C.F.R. §100.3(a).
2. Petitioner received a seasonal influenza vaccine on November 16, 2011, and a
high-dose influenza vaccine on December 7, 2011.
3. The vaccines were administered within the United States.
4. Petitioner alleges that he subsequently suffered the injury Guillain-Barré
Syndrome (“GBS”), which petitioner alleges was caused-in-fact by his receipt of the influenza
vaccines. Petitioner further alleges that he experienced the residual effects of his injury for more
than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil
Case 1:12-vv-00903-UNJ Document 18 Filed 08/07/13 Page 2 of 5
action for damages as a result of his condition.
6. Respondent denies that the influenza vaccines caused petitioner’s alleged injury
and residual effects.
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 $150,000.00 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.
10. Petitioner and his 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 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.
Case 1:12-vv-00903-UNJ Document 18 Filed 08/07/13 Page 3 of 5
11. 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.
12. The parties and their attorneys further agree and stipulate that, except for any
award for attorneys’ 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-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, petitioner, in his
individual capacity, and on behalf of his heirs, executors, administrators, successors or assigns,
does forever irrevocably and unconditionally release, acquit and discharge the Secretary of
Health and Human Services and the United States of America 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 Federal 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 from, or alleged to have resulted from, the influenza vaccines administered
on November 16, 2011 and December 7, 2011, as alleged by petitioner in a petition for vaccine
compensation filed on or about December 21, 2012, in the United States Court of Federal Claims
as petition No. 12-903V.
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
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Case 1:12-vv-00903-UNJ Document 18 Filed 08/07/13 Page 4 of 5
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 the sole discretion of either party.
16. This Stipulation expresses a full and complete negotiated settlement of liability
and damages claimed under the National 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 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 of
America or the Secretary of Health and Human Services that petitioner’s alleged injury and
residual effects, or any other injury, were caused-in-fact by the influenza vaccines.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner’s heirs, successors and/or assigns.
END OF STIPULATION
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