Judges: Nora Beth Dorsey
Filed: Nov. 19, 2019
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-2008V Filed: September 11, 2019 UNPUBLISHED KAREN HERGETT, Petitioner, v. Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza SECRETARY OF HEALTH AND (Flu) Vaccine; Guillain-Barre HUMAN SERVICES, Syndrome (GBS) Respondent. Bradley S. Freedberg, Brad Freedberg Attorney at Law, Denver, CO, for petitioner. Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-2008V Filed: September 11, 2019 UNPUBLISHED KAREN HERGETT, Petitioner, v. Special Processing Unit (SPU); Joint Stipulation on Damages; Influenza SECRETARY OF HEALTH AND (Flu) Vaccine; Guillain-Barre HUMAN SERVICES, Syndrome (GBS) Respondent. Bradley S. Freedberg, Brad Freedberg Attorney at Law, Denver, CO, for petitioner. Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT ..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-2008V
Filed: September 11, 2019
UNPUBLISHED
KAREN HERGETT,
Petitioner,
v. Special Processing Unit (SPU); Joint
Stipulation on Damages; Influenza
SECRETARY OF HEALTH AND (Flu) Vaccine; Guillain-Barre
HUMAN SERVICES, Syndrome (GBS)
Respondent.
Bradley S. Freedberg, Brad Freedberg Attorney at Law, Denver, CO, for petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On December 21, 2017, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that she suffered Guillain-Barre Syndrome (“GBS”) as
a result of an influenza (“flu”) vaccine received on October 19, 2016. Petition at 1-3;
Stipulation, filed September 11, 2019, at ¶¶ 2-4. Petitioner further alleges she
experienced the residual effects of her injury for more than six months, the vaccine was
administered in the United States, and that there has been no prior award or settlement
of a civil action for damages as a result of her condition. Petition at 2-3; Stipulation at
¶¶ 3-5. “Respondent denies that petitioner sustained a GBS Table injury, and denies
that petitioner’s alleged GBS and its residual effects were caused-in-fact by her flu
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the internet. In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required to post it on the United States Court of Federal Claims'
website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services).
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
vaccine. Respondent further denies that the vaccine caused petitioner any other injury
or her current condition.” Stipulation at ¶ 6.
Nevertheless, on September 11, 2019, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. The
undersigned finds the stipulation reasonable and adopts it as the decision of the Court
in awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned
awards the following compensation:
A lump sum of $345,000.00 in the form of a check payable to petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of
damages that would be available under § 15(a). Id.
The undersigned approves the requested amount for petitioner’s compensation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
KAREN HERGETT,
Petitioner,
No. I 7-2008V
v. Chief Special Master Dorsey
ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner Karen Hergett ("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 an influenza ("flu"), which vaccine is contained in the Vaccine Injury Table (the 'Table"), 42
C.F .R. § I 00.3 (a).
2. Petitioner received her flu immunization on October 19, 2016.
3. The vaccine was administered within the United States.
4. Petitioner alleges that as a result of receiving the flu vaccine she developed Guillain-
Barre Syndrome {"GBS") and experienced 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 as a result of her condition.
6. Respondent denies that petitioner sustained a GBS Table injury, and denies that
petitioner's alleged GBS and its residual effects were caused~in-fact by her flu vaccine.
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Respondent further denies that the vaccine caused petitioner any other injury or her current
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 r~eive compensation
pursuant to 42 U.S.C. § 300aa-2 I(a)(l ), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $345,000.00 in the fonn 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-2l(a)(l), 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-l 5(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.
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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 unreimbursable expenses, the money provided
pursuant to this Stipulation will be u~ed 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-l 5(g) and (h).
13. In return for the.payments described in paragraphs 8 and 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- l Oet 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 vaccination administered on October 19, 2016, as
alleged by petitioner in her petition for vaccine compensation filed on December 21, 2017, in
the United States Court of Federal Claims as petition No. I 7-2008V.
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.
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15. If the special master fails to issue a decision in complete confonnity with the terms
of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity with a
decision that is in complete conformity with the terms of this Stipulation, then the parties'
s.ettlement 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 flu vaccination caused petitioner to suffer GBS
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.
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Respectfully submitted,
PETITIONER;
~ L b /~a;lc
IO\ENHERGETT
AUTHORIZED REPRESENTATIVE
OJ THE ATTORNEY GENERAL:
~ 'i-----
BRADLEY S. FR OBERG
Law Office of Bradley S. Freedberg, P.
·1888 Sherman Street, #200
Denver, CO 80203 Civil Division
(303) 892-0900 U.S. Department of iustice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
TAMARA OVERBY
a i/7/0.,VLt ~
ADRIANA TEITEL·
Acting Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 11 C-26 Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-3677
Dated: 9 / /D / / 9
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