United States Court of Federal Claims, 2017

Herrera v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided January 11, 2017 · Nora Beth Dorsey

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 16-321V Filed: October 13, 2016 UNPUBLISHED

**************************** PHILLIP HERRERA, *

Petitioner, * Joint Stipulation on Damages; v. * Tetanus, Diptheria, acellular Pertussis

* (“Tdap”) Vaccine; Nodular Fasciitis; SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, *

Respondent. *

**************************** Jerome A. Konkel, Samster, Konkel & Safran, SC, Milwaukee, WI, for petitioner. Lara A. Englund, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

On March 14, 2016, 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 alleged that he developed nodular fasciitis after receiving the tetanus, diphtheria, acellular pertussis (“Tdap”) vaccine on April 23, 2013. Petition at 1; see also Stipulation, filed Oct. 13, 2016, at ¶¶ 1-2, 4. Petitioner further alleged that he received the Tdap vaccine in the United States, that he suffered the effects of his injury for more than six months, and that he has not filed a civil suit or received compensation for his injury, alleged as vaccine caused. Petition at ¶¶ 2, 8, 10; see also Stipulation at ¶¶ 3-5. “Respondent denies that the Tdap vaccine is the cause of petitioner’s nodular fasciitis or any other injury or his current condition.” Stipulation at ¶ 6.

Nevertheless, on October 13, 2016, 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.

The parties stipulate that petitioner shall receive the following compensation: A lump sum of $90,000.00 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.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends 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). 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. 2 National 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).

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