Rishwain v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
MICHAEL RISHWAIN, *
* No. 15-695V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: August 3, 2016
*
SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine;
AND HUMAN SERVICES, * brachial neuritis.
*
Respondent. *
******************** *
Jeffrey S. Pop, Jeffrey S. Pop, Attorney at Law, Beverly Hills, CA, for Petitioner;
Adriana Ruth Teitel, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On August 2, 2016, the parties filed a joint stipulation concerning the
petition for compensation filed by Michael Rishwain on July 6, 2015. In his
petition, petitioner alleged that the influenza (“flu”) vaccine, which is contained in
the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he
received on October 22, 2013, caused him to suffer brachial neuritis. Petitioner
further alleges that he suffered the residual effects of this injury for more than six
months. 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.
Respondent denies that petitioner’s brachial neuritis and its residual effects
were caused-in-fact by his flu vaccine. Respondent further denies that the vaccine
caused petitioner any other injury or his current condition.
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The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
Nevertheless, the parties agree to the joint stipulation, attached hereto as
Appendix A. The undersigned finds said stipulation reasonable and adopts it as the
decision of the Court in awarding damages, on the terms set forth therein.
Damages awarded in that stipulation include:
A lump sum payment of $25,000.00 in the form of a check payable to
petitioner, Michael Rishwain. This amount represents compensation
for all damages that would be available under 42 U.S.C. § 300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 15-695V according to this decision
and the attached stipulation.2
Any questions may be directed to my law clerk, Shannon Proctor, at (202)
357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
· OFFICE OF SPECIAL MASTERS
MICHAEL RISHWAIN,
Petitioner,
V. No. 15-695V
Special Master Moran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following malters:
1. Petitioner Michael Rish wain ("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 vaccine ("flu"), which vaccine is contained in the Vaccine
Injury Table (the "Table"), 42 C .F .R. § 100.3 (a).
2. Petitioner received his flu immunization on October 22, 2013.
3. The vaccine W"1S administered within the United States.
4. Petitioner alleges that he sustained a vaccine-related injury diagnosed as brachia!
neuritis that was caused-in-fact by the flu vaccine he received. He further alleges that he
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 his condition.
6. Respondent denies that petitioner's brachia! neuritis and its residual effects were
caused-in-fact by his flu vaccine. Respondent further denies that the vaccine caused petitioner
any other injury or his 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 receive compensation
pursuant to 42 U.S.C. § 300aa-21(a)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of$25,000.00 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)(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 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 p olicies,
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 pw·suant 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 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-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 flu vaccination administered on October 22, 2013, as
alleged by petitioner in his petition for vaccine compensation filed on July 6, 2015, in the United
States Court of Federal Claims as petition No. 15-695V.
14. If petitioner should die prior to entty 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 conformity with the tenns
· 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 t11e United States or the
Secretary ofHealth and Human Services that ilie flu vaccination caused petitioner to suffer
brachial neuritis 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.
END OF STIPULATION
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Respectfully submitted,
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTA11VE
~G~
PETITIONER:
;§f~ATES
9 107 Wilshire Blvd, Suite 700
RINE E. REEVES
g Deputy Director
Torts Branch
Beverly Hills, CA 90210 Civil Division
(3 10) 273-5462 U.S . Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTilOIUZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECREJ:AR'£.O~HEALTH UESPONDENT:
AND HUf1AN ~E¥VIfES: !
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' .. •. l{ i / .,:_..,/ / l· cv,.,;t__
NARAYAN~A~M.D. ADRIANA TEITEL
Acting Dirct;tor, Division of Trial Attomey
Injuiy 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 Benjaniin Franklin Station
ParklawnBuilding, Mail Stop 08-Nl46B Washington, DC 20044-0146
Rockville, MD 20857 (202) 616-3677
Dated: Av3 2-,. 2o IG
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