Sn the Gunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: April 14, 2021
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MORGAN GAFFNEY, * UNPUBLISHED
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Petitioner, * No. 19-1777V
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V. * Special Master Gowen
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SECRETARY OF HEALTH * Stipulation; Influenza (Flu);
AND HUMAN SERVICES, * Transverse Myelitis (TM).
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Respondent. *
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Anne C. Toale, Maglio Christopher & Toale, Sarasota, FL, for petitioner.
Julia M. Tollison, United States Department of Justice, Washington, D.C., for respondent.
DECISION ON STIPULATION!
On November 19, 2019, Morgan Gaffney (“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 October 10, 2017. Petitioner alleges that she experienced an episode of
transverse myelitis (“TM”) caused by the administration of the flu vaccine. She further alleges
that she experienced the residual effects of this condition for more than six months.
On April 14, 2021, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation (ECF No. 44). Respondent denies that
petitioner experienced an episode of TM; denies that the flu vaccine caused petitioner’s alleged
TM, or any other injury; and denies that her current condition is a sequelae of a vaccine-related
' 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:/Avww.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. Id.
> 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.
injury. 7d. at 6. 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 the stipulation, which is attached hereto as Appendix
A. Id. at ¥7.
The stipulation awards a lump sum of $97,500.00 in the form of a check payable to
petitioner. This lump sum 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 ISSO 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
11(a).
TN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MORGAN GAFFNEY,
Petitioner, No. 19-1777V
Special Master Gowen
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Morgan Gaffney (“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 an injury allegedly related to petitioner’s receipt
of an influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the “Table’’), 42
C.E.R. § 100.3(a).
2. On October 10, 2017, petitioner received a flu vaccine.
3. The vaccine was administered in the United States.
4. Petitioner alleges that she experienced an episode of transverse myelitis caused by
the administration of the flu vaccine. She further alleges that she experienced the residual effects
of this condition 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 her alleged condition.
6. Respondent denies that petitioner experienced an episode of transverse myelitis;
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denies that the vaccine caused petitioner’s alleged transverse myelitis, or any other injury; and
denies that her current condition is a sequelae 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-21(a)(1), the Secretary of Health and Human Services will issue a
lump sum of $97,500.00 in the form of a check payable to petitioner. This lump sum 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 her attorney represent that they have identified to respondent all
known sources of payment for items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-15(g), including 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 entities that provide health services on a pre-paid basis.
11. Payment made pursuant to paragraph 8 of this Stipulation, and any amount
awarded pursuant to paragraph 9, 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
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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 paragraph 8, and any amount awarded
pursuant to paragraph 9, petitioner, in her individual capacity, and on behalf of her 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 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 vaccine
administered on October 10, 2017, as alleged in a Petition filed on November 19, 2019, in the
United States Court of Federal Claims as petition No. 19-1777V.
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 United States 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 Childhood Vaccine Injury Act of 1986, as amended, except
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as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the
parties hereto to make any payment or 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 shal! not be construed as an admission by the United States or the
Secretary of Health and Human Services that the flu vaccine caused petitioner’s alleged TM, or
any other injury or her current condition.
18. All rights and obligations of petitioner shall apply equally to petitioner’s heirs,
executors, administrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully submitted,
PETITIONER:
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MORGAN’ GAFRNEY”
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ATTORNEY OF RECORD FOR
PETITIONER:/
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ANN CARRION TOALE, ESQ
Maglio Christopher & Toale, P.A.
1605 Main St. Suite 710
Sarasota, FL 34236
(888) 952-5242
atoale@mctlaw.com
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AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
CAPT Dale Werhler, PNSc, i
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Healthcare Systems Bureau
Health Resources and Services
Administration
U.S. Department of Health
and Human Services
5600 Fishers Lane, 08N146B
Rockville, MD 20857
Dated: ow | 13[202 {
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AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
AM edstourd etn
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:
Me Usbb.rery
JULIA M. COLLISON
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 305-0102