UNPUBLISHED
DECISION ON JOINT STIPULATION1
MINDY MICHAELS ROTH, Special Master.
On January 29, 2015, James Boj an ("petitioner") filed a petition for compensation on behalf of his minor child, J.D.B, under the National Vaccine Injury Compensation Program.2 Petitioner alleges that a diphtheria-tetanus-acellular pertussis ("DTaP") vaccination J.D.B received on January 27, 2012 either caused or significantly aggravated his idiopathic thrombocytopenic purpura ("ITP"). See Stipulation, filed July 13, 2016, at 1-6. Respondent denies that the DTaP immunization caused or significantly aggravated J.D.B.'s condition or any other injury. Stipulation at 2.
Nevertheless, the parties have agreed to settle the case. On July 13, 2016, the parties filed a joint stipulation, attached as Appendix A, agreeing to settle this case and describing the settlement terms.
Respondent agrees to issue the following payment:
A lump sum of $110,000.00 in the form of a check payable to petitioner, James Bojan, as guardian/conservator of the estate of J.D.B. for the benefit of J.D.B., representing compensation for all damages that would be available under § 300aa-15(a).
I adopt the parties' stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
STIPULATION
The parties hereby stipulate to the following matters:
1. On behalf of his son, J.D.B., 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 J.D.B.'s receipt of the Diphtheria-Tetanus-acellular Pertussis ("DTaP" vaccine. which vaccine is contained in the Vaccine Injury Table (the "Table"). 42 C.F.R. § 100.3 (a).
2. J.D.B. received a DTaP immunization on or about January 27, 2012.
3. The vaccine was administered within the United States.
4. Petitioner alleges that J.D.B.'s idiopathic thrombocytopenic purpura ("1TP") was caused or significantly aggravated by the DTaP immunization he received on or about January 27, 2012, and further alleges that J.D.B. suffered the 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 DTaP vaccine caused or significantly aggravated J.D.B.'s alleged ITP or any other injury and further denies that his current disabilities are a sequela 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 the following vaccine compensation payment:
A lump sum of $110,000.00 in the form of a check payable to petitioner as guardian/conservator of the estate of J.D.B. for the benefit of J.D.B. representing 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 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 prepaid basis.
11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts 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 award for attorney's fees and litigation costs, the money provided pursuant to this Stipulation will be used solely for the benefit of J.D.B.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. Petitioner represents that he presently is, or within 90 days of the date of judgment will become, duly authorized to serve as guardian/conservator of.I.D.B.'s estate under the laws of the State of Illinois. No payment pursuant to this Stipulation shall be made until petitioner provides the Secretary with documentation establishing his appointment as guardian/conservator of J.D.13.'s estate. if petitioner is not authorized by a court of competent jurisdiction to serve as guardian/conservator of the estate of.T.D.B. at the time a payment pursuant to this Stipulation is to be made, any such payment shall he paid to the party or parties appointed by a court of competent jurisdiction to serve as guardian/conservator of the estate of J.D.B. upon submission of written documentation of such appointment to the Secretary.
14. In return for the payments described in paragraphs 8 and 9. petitioner, in his individual capacity and as legal representative of J.D.13., on behalf of himself, J.13,13. and his heirs, executors, administrators, successors, and 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 United States 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 J.D.B. resulting from, or alleged to have resulted from, the DTaP vaccination administered on or about January 27. 2012, as alleged by petitioner in a petition fur vaccine compensation filed on or about January 29, 2015, in the United States Court of Federal Claims as petition No. 15-091V.
15. If J.D.B. should die prior to entry of judgment, this agreement shall he voidable upon proper notice to the Court on behalf of either or both of the parties.
16. If the special master fails to issue a decision in complete confonnity 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.
17. 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 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.
18. This Stipulation shall not he construed as an admission by the United States or the Secretary of Health and Human Services that the DTaP vaccine caused or significantly aggravated J.D.B.'s alleged ITP, or any other injury or any of his current disabilities.
19. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs. executors, administrators, successors. and/or assigns as legal representatives of J.D.B.
