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., Philadelphia, PA, for Petitioner;
Jennifer L. Reynaud, U. S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On August 18, 2014, respondent filed a joint stipulation concerning the
petition for compensation filed by Robert Kaper on June 24, 2013. In his 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 him 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.
Respondent denies that petitioner's alleged GBS and residual effects were
1
The 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 information 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 date of vaccination as November 10, 2011, but the medical
records confirm that 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 the 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 lump 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, Appendix 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, No. 13-504V
Special Master Moran
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPUJ.,ATION
The po1ties hereby stipulate to the fo llowing mat1ers:
l. Robert Kaper ("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 petitione1"s receipt
of an influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the
"Table"), 42 C.F.R. § 100.3(a).
2. Petitioner received his flu immunization on November 9, 2011 . 1
3. The vaccine was administered within the United States.
4. Petitioner alleges that he sustained a vaccine-related injury diagnosed as
Gui Ila in-Barre Syndrome ("OBS") that was caused-in-fact by the flu vaccine. He further alleges
that he experienced the residual effects of his injury for more than six months.
1
The petition identifies the dntc of vaccination as November 10, 20 I I, but tho medical records confirm tliat November
9, 20 I I, is the correct date of vaccination.
Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 2 of 5
5. Petitioner represents that there has been no prio1 award or settlement of a civil action
·
for damages as a result of his condition.
6. Respondent denies that petitioner's alleged GBS and residual effects were
caused-in-fact by the flu vaccine. Respondent further denies that the flu vaccine caused petitioner
any other i1tjury or his current condition.
7. Mnintaining their above-stated positions, 1hc parties nevettheless now agree that the
issues between them shal! 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 t~is Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa-21(a)(l), the Secretary of Health and Human Services will issue the
following vaccine compensation payment:
A lump sum of $160,000.00 in the form of a check payable to petitioner. This
am·ount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-J 5(a).
9. As soon as practicable after the entry ofjudgment 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-2 l(a)( I), 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.
l 0. Petitioner and his attomey 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-l 5(g), to the extent that payment has been made or can reasonably be expected to
2
Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 3 of 5
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. Payments made pursuant to paragraphs 8 and 9 of this Stipulation will be made in
accordance with 42 U .S.C. § 300aa- l 5(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, litigation costs, and past unreimbursable 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- l 5(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 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
Cou11 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 a flu vaccination administered on or about November 9, 20 11 , as alleged by
petitioner in a petition for vaccine compensation filed on or about Jul y 24, 201 3, in the United
States Court of Federal Claims as petition No. 13-504V.
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 ofjudgment, 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 confonnity with the terms of
this Stipulation or if the Coutt 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 Childhood Vaccine Injury Act of 1986, as amended, except
as otherwise noted in paragraph 9 above. There is absolutely no ag1-eement on the part of the
parties hereto to make any payment or to do any act or thing other than is herein express.Jy 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 or the
Secretal'y of Health and Human Services that the flu vaccine caused petitioner to suffer OBS or
any other injuries.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
4
Case 1:13-vv-00504-UNJ Document 20 Filed 08/18/14 Page 5 of 5
Respectfully submitted,
PETITIONER:
CORD FOR AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
~J~ ·
lrf-4~· ~ ·
Anapol Schwartz
vmcfulr fuAT
Deputy Director
ANOSKI
1710 Spruce Street Torts Branch
Philadelphia, PA 19103 Civil Division
(215) 790-4567 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
1
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATl'ORNEYOFRECORDFOR
OF THE SECRET Y F HEALTH RESPONDENT:
ANDH VICE:
USTON, M.D., M.P.H, PAAP
Acting Director, Division of
Vaccine lnjury Compensation (DVIC)
~~'al Attorney
Torts Branch
Acting Director, Countenneasures Injury Civil Division
Compensation Program (CICP) U.S. Department of Justice
Healthcare Systems Bureau P.O. Box 146
U.S. Department of Health Benjamin Franklin Station
and Human Services Washington, DC 20044-0146
5600 Fishers Lane (202) 305-1586
Parklawn Building, Mail Stop 11 C-26
Rockville, MD 20857
Dated: ~· \ 0 1 201 j
5
Kaper v. Secretary of Health and Human Services
Combined Opinion