Sn the Cunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: April 13, 2021
* * * * * * * * * * * * *
VIRGIL TOPHAM, * Unpublished
*
Petitioner, * No. 19-1072V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Stipulation for Award;
AND HUMAN SERVICES, * Influenza (“flu”); Chronic
* Inflammatory Demyelinating
Respondent. * Polyneuropathy (“CIDP”).
* * * * * * * * * * * * *
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, D.C., for petitioner.
Voris E. Johnson, U.S. Dept. of Justice, Washington, D.C., for respondent.
DECISION ON STIPULATION!
On July 25, 2019, Virgil Topham (“petitioner”) filed a petition for compensation in the
National Vaccine Injury Compensation Program.” Petition (ECF No. 1). Petitioner received an
influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”),
on November 1, 2017. Stipulation (ECF No. 28). Petitioner alleges that he subsequently
suffered the injuries of Guillain-Barre syndrome (“GBS”) and Chronic Inflammatory
Demyelinating Polyneuropathy (“CIDP”), which petitioner alleges were caused-in-fact by his
receipt of the flu vaccine, with residual effects of his injuries lasting for more than six months.
Id. at J 4.
On April 13, 2021, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation. Respondent denies that the flu
! Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The Court’s website is at http://Awww.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion
is posted on the Court’s website, each party has 14 days to file a motion requesting 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). An objecting party must provide the Court with a proposed
redacted version of the opinion. /d. If neither party files a motion for redaction within 14 days, the opinion will
be posted on the Court’s website without any changes. /d.
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-10 to 34 (2012)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of
the Act.
vaccine caused petitioner’s alleged GBS and/or CIDP and residual effects, or any other injury.
Id. at 6. While maintaining their respective positions, the parties nevertheless now agree that a
decision should be entered awarding the compensation described in paragraph 8 of the
stipulation, which is attached hereto as Appendix A. /d. at 7.
The stipulation awards a lump sum of $100,000.00 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).
I adopt the stipulation as the decision of the Court and hereby award compensation in the
amount and on the terms set forth therein. Accordingly, the Clerk of Court SHALL ENTER
JUDGMENT in accordance with the terms of the parties’ stipulation.*
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11a).
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
VIRGIL TOPHAM, )
)
Petitioner, )
) No. 19-1072V (ECF)
V. ) Special Master Gowen
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
I. Virgil Topham (“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 sustained following
petitioner’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 a flu vaccine on November 1, 2017.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he subsequently suffered the injuries Guillain-Barré
Syndrome (“GBS”) and Chronic Inflammatory Demyelinating Polyneuropathy (“CIDP”), which
petitioner alleges were caused-in-fact by his receipt of the flu vaccine. Petitioner further alleges
that he experienced the residual effects of his injuries 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 his condition.
6. Respondent denies that the flu vaccine caused petitioner’s alleged GBS and/or
CIDP and residual effects, or any other 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-21(a)(1), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
A lump sum of $100,000.00 in the form of a check payable to petitioner, Virgil
Topham, which 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.
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, 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).
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 flu vaccine administered on
November 1, 2017, as alleged by petitioner in a petition for vaccine compensation filed on or
about July 25, 2019, in the United States Court of Federal Claims as petition No. 19-1072V.
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
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 GBS and/or
CIDP and residual effects, or any other injury, were caused-in-fact by the flu vaccine.
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner’s heirs, successors and/or assigns.
END OF STIPULATION
~~ ™~ ~~ ~~ ™ ™~ ™~ ~~ ™™ ™™ ™™ ™™
Respectfully submitted,
PETITIONER:
“ye ( ian
C¥YIRGIL TSPHAM
ATTORNEY OF RECORD FOR
PETITIONER:
ny SE
LEAH V. DURANY
Law Offices of Leah V. Durant, PLLC
1717 K Street NW, Suite 900
Washington, DC 20006
(202) 775-9200
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
C4ET Dale Wushler, PNSe, per
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs (DICP)
Healthcare Systems Bureau
Health Resources and Services
Administration U.S. Department of
Health and Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
Dated: qu /jxlZo7_|
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
22 OAL Vet Wm
HEATHER L. PEARLMAN
Acting Deputy Director
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
Yous 2 \OAMASYY ) ;
bu NedHuin L Peo lin
VORIS £. JOHNSON, JR.
Senior Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel.: (202) 616-4136
Email: voris.johnson@usdoj.gov