Fenstermacher v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1366V

JAMES FENSTERMACHER, Chief Special Master Corcoran Petitioner, Filed: October 10, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.

Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON JOINT STIPULATION 1 On September 23, 2022, James Fenstermacher 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 he suffered from Guillain-Barre Syndrome (“GBS”) following an influenza vaccination he received on October 27, 2021. Amended Petition at 1; Stipulation, filed at October 9, 2025, ¶¶ 2, 4. Petitioner further alleges that he “suffered the residual effects of his injury for more than six months.” Petition at ¶ 39; Stipulation at ¶ 4. “Respondent denies that Petitioner sustained a GBS Table injury; denies that the flu vaccine caused Petitioner’s alleged injuries; denies that the flu vaccine significantly aggravated any underlying injury or conditions; and denies that the flu vaccine caused any other injury or Petitioner’s current disabilities.” Stipulation at ¶ 6.

Nevertheless, on October 9, 2025, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein.

Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $125,000.00, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under Section 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court is directed to enter judgment in accordance with this decision. 3 IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) JAMES FENSTERMACHER, ) ) Petitioner, ) No. 22- l 366V ) Chief Special Master Corcoran v. ) } SECRETARY OF HEALTII AND ) HUMAN SERVICES, ) ) Respondent. )

STIPULATION The parties hereby stipulate to the following matters: I. Petitioner, James Fenstermacher, 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") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a).

2. Petitioner received the vaccine on October 27, 2021. 1 3. The vaccine was administered within the United States.

4. The petition alleges that petitioner developed Guillain-Barre syndrome ("GBS"), as a result of the flu vaccine. Petitioner further alleges that he experienced the residual effects of this injury for more than six months.

On October 27, 2021, petitioner also received a Shingrix vaccine, which is not contained in the Vaccine Injury Table.

5. Petitioner represents that there has been no prior award or settlement of a civil action for damages arising out of the alleged vaccine injury.

6. Respondent denies that petitioner sustained a GBS Table injury; denies that the flu vaccine caused petitioner's alleged injuries; denies that the flu vaccine significantly aggravated any underlying injury or conditions; and denies that the flu vaccine caused any other injury or petitioner's current disabilities.

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 ofjudgment reflecting a decision consistent with the tenns of this Stipulation, and after petitioner has filed an election to receive 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 ofS125,000.00 to be paid through an ACH deposit to petitioner's counsel's IOLTA account for prompt disbursement to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. §300aa-l 5(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 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 any proceeding upon this petition.

10. Petitioner and petitioner's 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 4J 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 ct seq.)), or by entities that provide health services on a pre-paid basis, and 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).

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 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).

I3. In return for the payments described in paragraphs 8 and 9, petitioner, in petitioner's individual capacity, and on behalf of petitioner's 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 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 petitioner resulting from, or alleged to have resulted from, the vaccinations administered on October 27, 2021 , identified in a petition for vaccine compensation, filed on or about September 23, 2022, in the United States Court of Federal Claims as petition No. 22-1366V.

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 confonnity with the terms of this Stipulation or if the United States 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' 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 vaccine caused petitioner's alleged injury or any other injury or petitioner's current condition.

18. All rights and obligations of petitioner hereun(ler shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.

END OF STIPULATION

s Respectfully submitted, PETITIONER:

~~~-$a viAMESFSTERMACHER

ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATI'ORNEY GENERAL:

ena1.d C-1/omer ~ j{/)//iJµ/),u dJ \&tii-v-~£~ RONALD C. HOMER hdt!J.!lt)!J) HEATHER L. PERLMAN MEREDITH DANIELS Deputy Director Conway Homer, P.C. Torts Branch, Civil Division Shawmut Street U.S. Department of Justice Boston, MA 02116 P.O. Box 146 617-695-1990 Benjamin Franklin Station mdaniels@ccan<Jh.com Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATIORNEYOFRECORDFOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: Olglt.lly s'9n1d by Jeffrey S• : Jeffrey ~~~ S. Buch ·S -5 .- Date:2025,09.18 Beach 1 92i92i96¾4'0Q' for CAPT GEORGE REED GRIMES, MD, MPH Director, Division of Injury Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justice Health Resources and Services P.O. Box 146 Administration Beltjamin Franklin Station U.S. Department of Health and Washington, DC 20044-0146 Human Services 202-305-4035 5600 Fishers Lane, 14W-18 parisa,taba§[email protected] Rockville, MD 20857

Dated: \0(t?t f Z,)