Winkelstein v. Secretary of Health and Human Services ( 2022 )

Sn the Gnited States Court of Federal Clanns
OFFICE OF SPECIAL MASTERS
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STEPHEN WINKELSTEIN, *
* No. 19-815V
Petitioner, ** Special Master Christian J. Moran
*
V. * Filed: April 4, 2022
*
SECRETARY OF HEALTH ** Stipulation; influenza (“‘flu’’) vaccine;
AND HUMAN SERVICES, ** Bell’s palsy; bilateral sensorineural
* hearing loss.
Respondent. **
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Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner;
Alexis B. Babcock, U.S. Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION!
On March 29, 2022, the parties filed a joint stipulation concerning the
petition for compensation filed by Stephen Winkelstein on June 3, 2019. Petitioner
alleged that the influenza (“flu’”’) vaccine he received on November 18, 2017,
which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a),
caused him to suffer Bell’s palsy and bilateral sensorineural hearing loss.
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.
' 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.
Respondent denies that the vaccines either caused petitioner to suffer from
Bell’s palsy, bilateral sensorineural hearing loss, or any other injury or his current
condition.
Nevertheless, the parties agree to the joint stipulation, attached hereto. 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 $70,000.00 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).
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment according to this decision and the attached
stipulation.”
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
? 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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
2 6 As 2 Ag Ae A i A ee ie a Se a Rs sR RR
STEPHEN WINKELSTEIN, *
*
Petitioner, * No. 19-815V
* Special Master Moran
V. *
*
SECRETARY OF HEALTH AND +
HUMAN SERVICES, *
*
Respondent. *
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STIPULATION
The parties hereby stipulate to the following matters:
l. 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’) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R.
§ 100.3 (a).
2. Petitioner received the flu vaccine on November 18, 2017.
3. The vaccine was administered within the United States.
4, Petitioner alleges that he suffered from Bell’s palsy and bilateral sensorineural
hearing loss after receipt of the flu vaccine, that his Bell’s palsy and bilateral sensorineural
hearing loss were caused-in-fact by receipt of the flu vaccine, and that he 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 flu vaccine caused petitioner’s alleged Bell’s palsy
and bilateral sensorineural hearing loss, or any other injury; and denies that his current condition
is a sequelae 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 $70,000.00, 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)(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 compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
under 42 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 et seq.)), or by entities that provide health services on a pre-paid basis.
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, 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 vaccine administered on November 18, 2017 as
alleged by petitioner in a petition for vaccine compensation filed on or about June 3, 2019, in the
United States Court of Federal Claims as petition No. 19-815V.
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 conformity with the
terms 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 the United States or the
Secretary of Health and Human Services that the flu vaccine caused petitioner’s alleged Bell’s
palsy and bilateral sensorineural hearing loss or any other injury or any of his alleged current
disabilities.
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,
PETITIONER:
a
STEPHEN WINKELSTEIN
ATTORNEY OF RECORD
FOR PETITIONER:
PAH DUNANT [)
Law Office of Leaf V. Durant, PLLC
1717 K Street NW, Suite 900
Washington, DC 20006
Tek 202-775-9200
Enmnil Ldurant@idurantlic,com
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
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CDR GEORGE REED GRIMES, MD, MPH
Director, Division of Injury
Compensation Programs
Ifcalth Systems Bureau
Health Resources and Services
Adminstration
US. Department of Health
and ITuman Services
$600 Fishers Lanc, 08N146B
Rockville, MD 20857
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AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
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HEATHER L. PEARLMAN
Deputy Director
Torts Branch
Civil Division
U.S. Department of Justice
P.0), Box 146
Benjamm Franklm Station
Washington, IX* 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
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