In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-571V
Filed: August 11, 2016
* * * * * * * * * * * * * * * * UNPUBLISHED
PHILLIP FERGUSON, *
* Special Master Hamilton-Fieldman
Petitioner, *
* Joint Stipulation on Damages;
v. * Influenza (“Flu”) Vaccine;
* Chronic Urticaria.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * *
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Darryl Wishard, United States Department of Justice, Washington, D.C., for Respondent.
DECISION 1
On July 7, 2014, Phillip Ferguson (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa-1 to -34
(2012). Petitioner alleged that an influenza (“flu”) vaccine administered on October 2, 2013
caused him to suffer from an allergic reaction and chronic urticaria.
On August 10, 2016, the parties filed a stipulation in which they state that a decision
should be entered awarding compensation to Petitioner. Respondent denies that the flu vaccine
either caused or significantly aggravated Petitioner’s alleged injury or any other injury, and
denies that Petitioner’s current disabilities are the result of a vaccine-related injury. However,
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this decision on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, codified as amended at 44 U.S.C. §
3501 note (2012). 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.
1
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 stipulate that Petitioner shall receive the following compensation:
A lump sum of $95,659.14 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 amounts 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/ Lisa Hamilton-Fieldman
Lisa Hamilton-Fieldman
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.
2
Case 1:14-vv-00571-UNJ Document 45 Filed 08/10/16 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
PH ILLIP FERGU SON, )
)
Petitioner, ) No. 14-571 V ECF
)
V. ) Special Master Hamilton-Fieldman
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
~~~~~~~~~~~~~~ )
STIPULATION
The parties hereby stipu late to the following matters:
1. Petitioner, Phill ip Ferguson, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa- I 0 to 34 (the "Vaccine
Program"). The petitio n seeks compensation for injuries allegedly related to petitioner' s receipt
of the influenza ("flu") vaccine, which is contained in the Vaccine Injury Table (the "Table" ), 42
C.F.R. § 100.3(a).
2. On October 2, 20 13, petiti oner received the flu vaccine.
3. The vaccine was administered w ithin the United States.
4. Petitioner alleges that, as a result of receiving the flu vaccine, he suffered from
chronic urticaria, and that he experienced symptoms of this injury 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 the alleged injury.
6. Respondent denies that the flu vaccine either caused or significantly aggravated
Case 1:14-vv-00571-UNJ Document 45 Filed 08/10/16 Page 2 of 5
petitioner's alleged injury or any other injury, and denies that petitioner's current di sabilities are
the result of a vaccine-related injury.
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-2 1(a)(J), the Secretary of Health and Human
Services will issue the fo llowing vaccine compensation payment:
A lump sum of$95,659.14, in the form ofa check payable to petitioner. This
amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-l 5(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. Section 300aa-21 (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.
I 0. 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.
1 I. Payment made pursuant to paragraph 8 of this Stipulation, and any amounts
2
Case 1:14-vv-00571-UNJ Document 45 Filed 08/10/16 Page 3 of 5
awarded pursuant to paragraph 9 of this Stipulation, wi ll 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-l 5(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa-l 5(g) and (h).
13. In return for the payments described in paragraph s 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 di scharge the United States and
the Secretary of Health and Human Services from any and all actions, 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-I 0 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 vaccine administered on October 2, 20 I 3, as alleged by
petitioner in a petition for vaccine compensation filed on or about July 7, 2014, in the United
States Court of Federal C laim s as petition No. 14-57 1V.
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.
I 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 C laims fai ls to enter judgment in conformity with a
deci sion t hat is in complete conformity with the terms of this Stipulation, then the parties'
3
Case 1:14-vv-00571-UNJ Document 45 Filed 08/10/16 Page 4 of 5
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 lia bility 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 that the award described in this
stipulation may reflect a compromise of the parties' respective positions as to liabi lity 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 thi s 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 flu vaccine received by petitioner e ither caused o r
significantly aggravated petitioner' s alleged injury or any other injury.
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 1:14-vv-00571-UNJ Document 45 Filed 08/10/16 Page 5 of 5
Respectfully submitted,
PETITIONER:
PHILLIP' F..ERGUSON
ATTORNEY OF RECORD FOR
PETITIONER:
PAUL R. BRAZIL, ES RINE E. REEVES
Muller Brazil, LLP Ac ng Deputy Director
715 Twining Road, Suite I 07 Torts Branch
Dresher, PA 19025 Civil Division
(215) 885-1655 U.S. Department of Justice
P.0. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
'.o-
Ac g Direct , Division of injury
~
Senior Trial Attorney
Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
and Hu:nan Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mai! Stop 08Nl46B Washington, DC 20044-0 146
Rockville, MD 20857 Tel: (202) 616-4357
Dated:
s
Ferguson v. Secretary of Health and Human Services
Combined Opinion