In the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1211V
(not to be published)
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GARRETT D. POLOWY
Filed: September 22, 2021
Petitioner,
*
*
*
*
*
*
*
Vv. * Decision by Stipulation; Damages;
* — Tetanus-diphtheria-acellular pertussis
SECRETARY OF HEALTH AND :
*
*
*
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*
HUMAN SERVICES,
(“Tdap”) Vaccine; Guillain-Barré
Syndrome (“GBS”).
Respondent.
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Amy A. Senerth, Muller Brazil LLP, Dresher PA, for Petitioner
Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON JOINT STIPULATION!
On August 14, 2018, Garrett D. Polowy (‘Petitioner’) filed a petition seeking
compensation under the National Vaccine Injury Compensation Program (“the Vaccine
Program”).” Pet., ECF No. 1. Petitioner alleges that he suffered from Guillain-Barré syndrome
(“GBS”) as a result of the Tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine he received on
December 8, 2016. See Stipulation J 2, 4, dated September 22, 2021 (ECF No. 32); see also
Petition.
' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the Decision will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen
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). Otherwise, the Decision in its present form will be available. Jd.
* The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
Respondent denies “that the Tdap vaccine caused Petitioner to suffer GBS or any other
injury or condition.” See Stipulation § 6. Nonetheless, both parties, while maintaining their above-
stated positions, agreed in a stipulation dated September 22, 2021 that the issues before them can
be settled and that a decision should be entered awarding Petitioner compensation. ECF No. 32.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth
therein.
The stipulation awards:
A lump sum of $20,000.00 in the form of a check payable to Petitioner.
Stipulation 8. This award represents compensation for all damages that would be available under
42 U.S.C. § 300aa-15(a).
I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court is directed to enter judgment herewith.
IT ISSO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
> Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice
renouncing their right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
GARRETT D. POLOWY,
we )
) Petitioner, ) No. 181211V
‘ ) | Special Master Oler
SECRETARY OF HEALTH AND HUMAN ) ECF
SERVICES,
Respondent. )
TIPULATION
The parties hereby stipulate to the following matters:
1. Garrett D. Polowy, 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 petitioner’s receipt
of the tetanus-diphtheria-acellular pertussis (“Tdap’’) vaccine, which vaccine is contained in the
Vaccine Injury Table (the ““Table”), 42 C.F.R. § 100.3(a).
2. Petitioner received the Tdap vaccination on December 8, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he suffered Guillain-Barre Syndrome (“GBS”) and
“neurological injuries” as a result of receiving the Tdap vaccine, and that he experienced residual
effects 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 on his behalf as a result of his condition.
6. Respondent denies that the Tdap vaccine caused petitioner to suffer GBS or any other
injury or condition.
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 $20,000.00 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.
11. Payment made pursuant to paragraph 8 of this Stipulation, 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 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-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 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 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 Tdap vaccine administered on or about December 8, 2016, as
alleged by petitioner in a petition for vaccine compensation filed on August 14, 2018, in the
United States Court of Federal Claims as petition No. 18-1211V.
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 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 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
Secretary of Health and Human Services that the Tdap vaccine caused petitioner to suffer GBS
or any other injury or condition.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
Respectfully submitted,
PETITIONER:
YN,
GARRETT D. POLOWY
ATTORNEY OF RECORD FOR
PETITIONER:
OLA
AMY A. SENERTH
MULLER BRAZIL, LLP
715 Twining Road, Suite 208
Dresher, PA 19025
(215) 885-1655
E-mail: amy@myvaccinelawyer.com
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
Dale Whahlar, PNSc, for
TAMARA OVERBY er
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: 09 hey lzaz, }
AUTHORIZED REPRSENTATIVE
OF THE ATTORNEY GENERAL:
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HEATHER L. PEARLMAN
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:
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TRACI R. PATTON
Assistant Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 353-1589
E-mail: Traci.Patton@usdoj.gov